Weatherall, Kimberlee --- "Of Copyright Bureaucracies and Incoherence: Stepping Back from Australia's Recent Copyright Reforms" [2007] MelbULawRw 37; (2007) 31(3) Melbourne University Law Review 967
[*] BA, LLB (Hons) (Syd), BCL (Oxon), LLM (Yale); Senior Lecturer, T C Beirne School of Law, The University of Queensland; Adjunct Research Fellow, Intellectual Property Research Institute of Australia (‘IPRIA’); Solicitor of the Supreme Court of New South Wales. I owe thanks to Brad Sherman, Robert Burrell, Chris Creswell, Rebecca Giblin‑Chen, David Starkoff, the attendees of a T C Beirne School of Law Research Seminar, and two anonymous referees for helpful feedback on the arguments and material in this article. Thanks also to the anonymous and not‑so‑anonymous readers of my erstwhile blog, Weatherall’s Law <http://weatherall.blog
spot.com>, who kept me honest during the copyright reform process.
[1] Commonwealth, Parliamentary Debates, House of Representatives, 5 December 2006, 65 (Nicola Roxon, Shadow Attorney‑General).
[2] Opened for signature 18 May 2004, [2005] ATS 1 (entered into force 1 January 2005). For a summary of the contents: see Christopher Arup, ‘The United States–Australia Free Trade Agreement — The Intellectual Property Chapter’ (2004) 15 Australian Intellectual Property Journal 205.
[3] In fact, this period comes at the end of a significant decade in copyright law (1996–2006), commencing with the negotiation of the World Intellectual Property Organization Copyright Treaty 1996, opened for signature 20 December 1996, 36 ILM 65 (entered into force 6 March 2002); the World Intellectual Property Organization Performances and Phonograms Treaty, opened for signature 20 December 1996, 36 ILM 76 (entered into force 20 May 2002) (‘WPPT’); and (perhaps) concluding with the passage of the Copyright Amendment Act 2006 (Cth).
[4] In the interests of full disclosure, my own involvement in the process consisted of commenting on developments in an ongoing manner via a web log, Weatherall’s Law <http://weatherall.blog
spot.com>; making submissions to government reviews; appearing in a personal capacity before both the House of Representatives Standing Committee on Legal and Constitutional Affairs (Inquiry into Technological Protection Measures (TPM) Exceptions) (‘TPM Inquiry’) and the Senate Standing Committee on Legal and Constitutional Affairs (Inquiry into the Provisions of the Copyright Amendment Bill 2006 (Cth)); serving on the Law Council of Australia IP Subcommittee; advising the Australian Digital Alliance as a member of its board (from 2005); and providing views to Linux Australia in relation to reforms to anti‑circumvention laws. I was not paid to undertake any of these activities.
[5] See below Part IV(B).
[6] See below Part IV(C).
[7] See below Part IV(A).
[8] The most notable exception is Professor Sam Ricketson: see especially Sam Ricketson, ‘Intellectual Property Administration and Policy in Australia: An Examination of the Australian Situation, Past and Present, and Recommendations for Future Change’ (Paper presented at the National Innovation Summit, Melbourne, 9–11 February 2000); Sam Ricketson, ‘The Future of Australian Intellectual Property Law and Administration’ (1992) 3 Australian Intellectual Property Journal 3. Some attention is given to the operation of the collecting societies, although it is intermittent and not academic: see Shane Simpson, Review of Australian Copyright Collecting Societies: A Report to the Minister for Communications and the Arts and the Minister for Justice (1995); Justice Kevin Lindgren, ‘The Interface between Intellectual Property and AntiTrust: Some Current Issues in Australia’ (2005) 16 Australian Intellectual Property Journal 76. Justice Lindgren of the Federal Court of Australia is currently the President of the Copyright Tribunal.
[9] See, eg, Robert Burrell, ‘Trademark Bureaucracies’ in Graeme B Dinwoodie and Mark D Janis, Trademark Law and Theory: A Handbook of Contemporary Research (2007).
[10] See especially Thomas Streeter, ‘Broadcast Copyright and the Bureaucratization of Property’ (1992) 10 Cardozo Arts & Entertainment Law Journal 567; Martin Kretschmer, ‘The Failure of Property Rules in Collective Administration: Rethinking Copyright Societies as Regulatory Instruments’ (2002) 24 European Intellectual Property Review 126; Joseph P Liu, ‘Regulatory Copyright’ (2004) 83 North Carolina Law Review 87. More recently, Pamela Samuelson has proposed that 17 USC §§101−810 (2000 & Supp V, 2006) could be streamlined through more delegation of rule‑making powers to administrative bodies: see Pamela Samuelson, ‘Preliminary Thoughts on Copyright Reform’ (2007) Utah Law Review (forthcoming); see also Mark A Lemley and R Anthony Reese, ‘Reducing Digital Copyright Infringement without Restricting Innovation’ (2004) 56 Stanford Law Review 1345 (proposing an administrative system for enforcement of copyright online).
[11] Opened for signature 18 May 2004, [2005] ATS 1, ch 17 (entered into force 1 January 2005).
[12] Under the AUSFTA, significant copyright provisions were required to be implemented by the time the agreement came into force, requiring legislation in mid‑2004: see below n 40. Article 17.12 of the AUSFTA, however, allowed Australia to delay implementation of changes to anti‑circumvention law by two years. As the agreement came into force on 1 January 2005, the result was that anti‑circumvention law amendments had to be in force by 1 January 2007.
[13] It could be argued that the upheaval started sooner in the 1980s with the need to accommodate computer programs in copyright law. The internet, however, did not become mainstream until the 1990s, at which time mass copying and distribution became much more pressing issues. It was in 1994 that John Perry Barlow published his famous essay claiming copyright was dead: see John Perry Barlow, ‘The Economy of Ideas’ (March 1994) 2.03 Wired 84.
[14] These uncertainties were discussed in a number of government documents: see especially Copyright Convergence Group, Highways to Change: Copyright in the New Communications Environment (1994); Attorney‑General’s Department, Australia, ‘Copyright Reform and the Digital Agenda: Proposed Transmission Right, Right of Making Available and Enforcement Measures’ (Discussion Paper, 1997).
[15] Opened for signature 20 December 1996, 36 ILM 65 (entered into force 6 March 2002).
[16] Opened for signature 20 December 1996, 36 ILM 76 (entered into force 20 May 2002).
[17] I have traced this history elsewhere: see Kimberlee Weatherall, ‘On Technology Locks and the Proper Scope of Digital Copyright Laws — Sony in the High Court’ [2004] SydLawRw 29; (2004) 26 Sydney Law Review 613; see also David Brennan, ‘What Can It Mean to “Prevent or Inhibit the Infringement of Copyright”? — A Critique on Stevens v Sony’ (2006) 17 Australian Intellectual Property Journal 81.
[18] In addition to the reports specifically referred to in the text: see Intellectual Property and Competition Review Committee, Australia, Review of Intellectual Property Legislation under the Competition Principles Agreement (2000), the copyright parts of which overlapped with the other reports noted here.
[19] The CLRC was a part‑time expert committee, appointed by the Attorney‑General, to consider and report on copyright issues referred from time to time. The announcement that it would be disbanded for ‘budgetary reasons’ was made on 20 May 2005: Attorney‑General’s Department, Australia (June 2005) 36 E‑News on Copyright <http://www.ag.gov.au/www/agd/agd.nsf/Page/
Copyright_e-NewsonCopyright_2005_Issue36-June2005>.
[20] CLRC, Parliament of Australia, Simplification of the Copyright Act 1968 — Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998); CLRC, Parliament of Australia, Simplification of the Copyright Act 1968 — Part 2: Categorisation of Subject Matter and Exclusive Rights, and Other Issues (1999) (‘Simplification Reports’).
[21] CLRC, Parliament of Australia, Jurisdiction and Procedures of the Copyright Tribunal (2000).
[22] CLRC, Parliament of Australia, Copyright and Contract (2002) [7.49].
[23] The Simplification Reports, above n 20, made very radical suggestions for a restructuring of copyright law, beyond what a government constrained by international treaty and history could be expected to implement. For a discussion: see Sam Ricketson, ‘Simplifying Copyright Law: Proposals from Down Under’ (1999) 21 European Intellectual Property Review 537. In recommending that copyright owners not be allowed to override copyright exceptions via contract, the Copyright and Contract report was somewhat less radical, but still required a significant departure from existing practice: see CLRC, Copyright and Contract, above n 22. The AUSFTA rendered many aspects of all three reports moot.
[24] Phillips Fox, Digital Agenda Review: Report and Recommendations (January 2004) (‘Digital Agenda Review’).
[25] See the terms of reference: ibid 121–2.
[26] Copyright Act 1968 (Cth) s 31. Most digital uses of material involve making temporary copies into the memory of devices. If temporary copies are covered by copyright, then whenever such copies come from unauthorised/pirate copies, the user engages in infringement. In addition, if all temporary copies ‘count’ for copyright purposes, then exceptions are required to allow ‘caching’ — the temporary, technical storage of internet content to improve the overall efficiency of systems. The key concept — that of ‘material form’ — had been amended in the 1980s (Copyright Amendment Act 1984 (Cth), amending Copyright Act 1968 (Cth)) but not during the digital agenda reforms in 2000.
[27] In 2000, Australia made the (controversial, at least to owners) decision to extend various analogue exceptions allowing digital copying by these institutions.
[28] The report was tabled in Parliament and released to the public in April 2004. The report included 20 recommendations at varying levels of detail: see above n 24.
[29] For an overview of the Digital Agenda Review’s 20 recommendations: see ibid 1–11. Recommendations 15 and 17 in particular were ‘user friendly’ in ways which lay directly contrary to the copyright provisions known to be required by the US of its trading partners.
[30] Commonwealth of Australia, Myer Report (2002). The Inquiry was colloquially known as the ‘Myer Inquiry’, after the Chair, Rupert Myer. The Myer Report considered a number of the matters already mentioned, as well as droit de suite and special protections for indigenous moral rights. It recommended a narrowing of exceptions to exceptions applying to visual arts and crafts under the Copyright Act 1968 (Cth) pt III div 7: at recommendation 3.
[31] The background is described in: Bills Digest No 36 2005–06: Copyright Amendment (Film Directors’ Rights) Bill 2005 (2005).
[32] Such provisions were required for Australia to ratify the WPPT, opened for signature 20 December 1996, 36 ILM 76 (entered into force 20 May 2002). There had been a series of reports on the latter: CLRC, Parliament of Australia, Report on Performers’ Protection (1987); Brad Sherman and Lionel Bently, Performers’ Rights: Options for Reform (1995). Performers’ rights legislation due in 2003 was deferred pending the AUSFTA negotiations.
[33] An exposure draft of the Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003 was circulated to limited stakeholders in December 2003: see Jane Anderson, ‘The Politics of Indigenous Knowledge: Australia’s Proposed Communal Moral Rights Bill’ [2004] UNSWLawJl 34; (2004) 27 University of New South Wales Law Journal 585, 597.
[34] A droit de suite was supported by the Myer Report: see Myer Report, above n 30, 158. A discussion paper on the issue was later issued: Department of Communications, Information Technology and the Arts, Australia, ‘Proposed Resale Royalty Arrangement’ (Discussion Paper, 2004).
[35] See Emily Hudson and Sophie Waller, ‘Droit De Suite Down Under: Should Australia Introduce a Resale Royalties Scheme for Visual Artists?’ (2005) 10 Media & Arts Law Review 1.
[36] Opened for signature 18 May 2004, [2005] ATS 1, ch 17 (entered into force 1 January 2005).
[37] Attorney‑General’s Department, Australia, Digital Agenda Review — Government Responses to Phillips Fox Recommendations and Related Matters (2006) 1. Strangely, the law firm which conducted the review was specifically instructed not to consider the potential impact of the AUSFTA: see Matthew Rimmer, ‘Robbery under Arms: Copyright Law and the Australia–United States Free Trade Agreement’ (2006) 11(3) First Monday <http://www.firstmonday.org/issues/
issue11_3/rimmer/index.html>.
[38] A federal election was due in late 2004; thus laws to implement the AUSFTA would have to be passed in August or wait until late November 2004. The 1 January 2005 deadline was a political objective rather than a requirement of the agreement.
[39] Tor Krever, ‘The US–Australia Free Trade Agreement: The Interface between Partisan Politics and National Objectives’ (2006) 41 Australian Journal of Political Science 51, 52.
[40] US Free Trade Agreement Implementation Act 2004 (Cth) (‘USFTA Act’).
[41] As required by AUSFTA, opened for signature 18 May 2004, [2005] ATS 1, art 17.4.4 (entered into force 1 January 2005). The copyright term was 20 years shorter under the Copyright Act 1968 (Cth) s 33.
[42] AUSFTA, opened for signature 18 May 2004, [2005] ATS 1, arts 17.1.4, 17.6 (entered into force 1 January 2005); USFTA Act sch 9 pt 1 (economic rights), sch 9 pt 2 (moral rights).
[43] AUSFTA, opened for signature 18 May 2004, [2005] ATS 1, art 17.4.1 (entered into force 1 January 2005); Copyright Act 1968 (Cth) ss 10 (definition of ‘material form’), 10(5), (6) (definition of ‘copy’). New exceptions were introduced for ordinary uses of legitimately purchased material: Copyright Act 1968 (Cth) ss 43B, 111B. The importance of temporary copies is noted: see above n 26.
[44] AUSFTA, opened for signature 18 May 2004, [2005] ATS 1, art 17.11.29 (entered into force 1 January 2005); Copyright Act 1968 (Cth) pt V div 2AA.
[45] Criminal liability was extended to cover not only activities done ‘for the purpose of trade’, but also those done ‘for commercial advantage’ and a new offence for ‘causing significant infringements’ without any financial motive was introduced: see Copyright Act 1968 (Cth) s 132AC, amended by Copyright Amendment Act 2006 (Cth).
[46] See especially USFTA Act sch 9 pt 7 (electronic rights management information), sch 9 pt 9 (unauthorised access to encoded television).
[47] Extension of copyright duration was contrary to the recommendation of the Intellectual Property and Competition Review Committee, Parliament of Australia, Review of Intellectual Property Legislation under the Competition Principles Agreement (2000) 84. The revisions relating to temporary copies and ISP safe harbours were contrary to the recommendations of the Digital Agenda Review, above n 24, recommendations 14–15. The adoption of IP standards higher than existing multilateral standards was contrary to research by the Productivity Commission: see John Revesz, ‘Trade‑Related Aspects of Intellectual Property Rights’ (Staff Research Paper, Productivity Commission, 1999).
[48] Certain errors were corrected later in the year: see Copyright Legislation Amendment Act 2004 (Cth). A further matter was the coverage of the ISP safe harbours. The Copyright Act 1968 (Cth) pt V div 2AA confines these safe harbours to ‘carriage service providers’, which, under s 87 of the Telecommunications Act 1997 (Cth), means network providers only. Other service providers, such as search engines and universities, and online service providers such as search engines, which receive the benefit of the safe harbours in the US under 17 USC §512 (2000 & Supp V, 2006), are thus excluded. The release in 2005 of a discussion paper on whether the safe harbours should be broadened suggests that the initial narrow coverage was, if not a mistake, at least an ill‑considered policy decision: see Attorney‑General’s Department, Australia, Part V Division 2AA of the Copyright Act 1968 Limitation on Remedies Available against Carriage Service Providers: Does the Scheme Need to Be Expanded? (Issues Paper, 2005).
[49] Sales of iPods increased from under 23 000 in the first quarter of 2004, to more than 330 000 in 2005: see Jim Dickins, ‘iPod Sales a Sour Note for the Disc’, The Sunday Telegraph (Sydney), 12 June 2005, 93, 95.
[50] Lawsuits against individuals commenced in September 2003 in the US: see Matthew Sag, ‘Piracy: Twelve‑Year Olds, Grandmothers, and Other Good Targets for the Recording Industry’ (2006) 4 Northwestern Journal of Technology and Intellectual Property 133. No individuals had been sued in Australia at the time.
[51] See, eg, Peter Martin, ‘The FTA Clause That Stifles Creativity’, The Sydney Morning Herald (Sydney), 14 April 2004, 13; ‘Paying Price of Free Trade’, Canberra Times (Canberra), 27 July 2004, 12; Bruce McCabe, ‘FTA Leaves Us Second among Equals’, The Australian (Sydney), 31 August 2004, C02; Ross Gittins, ‘Costs Aplenty in “Free” Trade IP Deals with US’, The Sydney Morning Herald (Sydney), 24 July 2004, 46; Ross Gittins, ‘Trade Deal a Free Kick for US Software Racketeers’, The Sydney Morning Herald (Sydney), 2 August 2004, 34; Ross Gittins, ‘Selling off a Slice of Our Country’, The Sydney Morning Herald (Sydney), 11 August 2004, 17.
[52] ‘You have now given me a huge guilt burden. I am in breach, I am a serial offender’: Commonwealth, Parliamentary Debates, Senate, 18 May 2004, 87 (Peter Cook).
[53] 17 USC §107 (2000 & Supp V, 2006).
[54] Joint Standing Committee on Treaties, Parliament of Australia, Report 61: Australia–United States Free Trade Agreement (2004) xx–xxi. See also the recommendations of the Labor senators (there were no majority recommendations) in Senate Select Committee on the Free Trade Agreement between Australia and the United States of America, Parliament of Australia, Final Report (2004) 230–2 (‘SSCFTA Report’).
[55] The Howard Government Election 2004 Policy Strengthening Australian Arts (4 October 2004) The Liberal Party of Australia <http://www.liberal.org.au/documents/Oct04_Strengthening
_Australian_Arts.pdf> 22. The 2004 Labor Party policy on copyright is no longer available on the Labor Party website, but it is reproduced in Collette Ormond, ‘Copyright Overboard? The Debate after the Australia–United States Free Trade Agreement’ (October 2004) 10 inCite <http://www.alia.org.au/publishing/incite/2004/10/copyright.html> .
[56] AUSFTA, opened for signature 18 May 2004, [2005] ATS 1, art 17.12 (entered into force 1 January 2005).
[57] Copyright law in Australia has always had an international aspect to it, but at least in recent memory, it has been officers from the Attorney‑General’s Department copyright law branch who have been most vitally concerned with international IP matters at the World Intellectual Property Organisation (‘WIPO’).
[58] Intellectual property obligations are included in the Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3, annex 1C (Agreement on Trade‑Related Aspects of Intellectual Property Rights) (entered into force 1 January 1995) (‘TRIPS’). All members of the WTO must sign up to TRIPS: at arts XI–XII.
[59] Amendments to Australia’s copyright law following the WTO negotiations consisted only of the introduction of a rental right (as required by TRIPS art 11), amendment to performers’ rights (as required by TRIPS art 14), and the regime for customs seizure (as required by TRIPS pt III s 4): see Copyright (World Trade Organization Amendments) Act 1994 (Cth). These are minor changes when compared with what has occurred after the AUSFTA.
[60] Commonwealth, Parliamentary Debates, House of Representatives, 5 December 2005, 28 (Helen Daniels) (noting that the Attorney‑General’s Department ‘was part of’ the AUSFTA negotiations).
[61] See Letter from Mark Vaile (Minister for Trade) to Robert Zoellick (United States Trade Representative), 17 November 2004 <http://www.ustr.gov/Trade_Agreements/Bilateral/Australia
_FTA/Implementation/Section_Index.html>.
[62] We could speculate that international lawyers without a background in copyright focus more specifically on the agreement text, in line with the interpretive principles in the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, arts 31–2 (entered into force 27 January 1980).
[63] This can be seen in the presence of a senior officer from the Office of International Law, Mark Jennings, in government evidence to the TPM Inquiry. The internal process in the department was described as follows: ‘whereas before we would be able to formulate a policy position, now we have to be certain that it complies or is consistent with Australia’s obligations under the agreement’: Commonwealth, Parliamentary Debates, House of Representatives, 5 December 2005, 31 (Peter Treyde), 22 (Helen Daniels). Perhaps the most curious issue is whether some of the later 2006 amendments were driven by the concerns of international lawyers. In particular, amendments to Copyright Act 1968 (Cth) s 40 (fair dealing) which did not appear to have been sought by any stakeholder group, but which may have arisen from a concern that the exception was not sufficiently ‘certain’ to comply with TRIPS art 13: see Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Provisions of the Copyright Amendment Bill 2006, 1 November 2006, Submission No 58, 3 (Australian Vice‑Chancellors’ Committee).
[64] Commonwealth of Australia Gazette, No S 518, 17 December 2004, 10.
[65] One actual amendment occurred: film directors were given certain extremely limited economic rights in their films: Copyright Amendment (Film Directors’ Rights) Act 2005 (Cth), passed in October 2005: see Bills Digest, above n 31, for background.
[67] Attorney‑General’s Department, Australia, ‘Review of One per Cent Cap on Licence Fees Paid to Copyright Owners for Playing Sound Recordings on the Radio’ (Discussion Paper, February 2005) <http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_Reviewofonepercentcapon
licencefees-February2005>.
[68] Attorney‑General’s Department, Australia, ‘Policy Review Concerning Unauthorised Access to and Use of Subscription Broadcasts’ (Discussion Paper, 2005).
[69] As noted below, no public announcement of this review was ever made and a discussion paper, while created, was never made publicly available, although it was noted on several web logs: see, eg, Warwick A Rothnie, Review of Online Service Provider Liabilities (2005) IPWar’s <http://homepage.mac.com/wrothnie/iblog/archives/2005/8/index.html> .
[70] Attorney‑General’s Department, Australia, ‘Fair Use and Other Copyright Exceptions: An Examination of Fair Use, Fair Dealing and Other Exceptions in the Digital Age’ (Issues Paper, 2005) (‘Fair Use Review’).
[71] The word ‘perceived’ here is used advisedly as the actual ‘strengthening’ which occurred was arguably relatively minor: see Robert Burrell and Kimberlee Weatherall, ‘Exporting Controversy? Reactions to the Copyright Provisions of the US–Australia Free Trade Agreement: Lessons for US Trade Policy’ (Working Paper No 07‑13, T C Beirne School of Law, The University of Queensland, 2007).
[72] This was to become the theme of the reforms, which the Attorney‑General reiterated in a series of speeches and press releases over the next two years: see, eg, Philip Ruddock, Attorney‑General of Australia, ‘Government Examines Fair Use of Copyright Material’ (Press Release, 5 May 2005); Philip Ruddock, Attorney‑General of Australia, ‘A More Flexible Copyright Regime’ (Press Release, 19 October 2006); Philip Ruddock, Attorney‑General of Australia, ‘Copyright Gift for Consumers’ (Press Release, 12 December 2006); Philip Ruddock, Attorney‑General of Australia, ‘Fair Use and Copyright in Australia’ (2007) 25(2) Communications Law Bulletin 4. See also the second reading speech to the Copyright Amendment Bill 2006 (Cth): Commonwealth, Parliamentary Debates, House of Representatives, 19 October 2006, 1–2 (Philip Ruddock, Attorney‑General).
[73] For comments related to the disaggregation: see, eg, House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Review of Technological Protection Measures Exceptions (2006) 17–18, 128–9 (‘TPM Inquiry Report’).
[74] See above n 68 and accompanying text.
[75] The observer might also infer the purpose of the review was to comply with undertakings given by the Trade Minister, Mark Vaile, in November 2004: see Vaile, above n 61.
[77] It is not suggested that the group selected for consultation was biased towards over‑representation of any viewpoint or group. Users such as universities, owners, ISP representative groups and search engines were consulted, as well as more independent experts including barrister and copyright author, Warwick Rothnie, and me. It is, however, unusual to create a discussion paper which is not made generally available.
[78] Once the government had reached a broad policy approach, it consulted confidentially with a selected group of stakeholders, including representatives of both owners and users in December 2005: see Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Provisions of the Copyright Amendment Bill 2006 (2006) 68 (‘SSCLCA Final Report’). A list of who was consulted is not publicly available.
[79] Events were held, inter alia, by the Copyright Society, IPRIA and the Centre for Media and Communications Law: see IPRIA, Past Events (26 July 2007) IPRIA <http://www.ipria.org/
events/#events05>. A number of speakers also presented papers on the issue at the Copyright Society’s 12th Biennial Conference, 17–18 November 2005: see Australian Copyright Council, Copyright Symposium 2005: Speakers and Papers (23 February 2006) Australian Copyright Council <http://www.copyright.org.au/training/conferences/past-conferences/symposium2005/
symposium.htm>.
[80] Opened for signature 18 May 2004, [2005] ATS 1, art 17.4.7 (entered into force 1 January 2005).
[81] The government distanced itself from US models: see Evidence to Senate Select Committee on the Free Trade Agreement between Australia and the United States of America, Parliament of Australia, Canberra, 3 June 2004, 67 (Stephen Deady, DFAT); see also Evidence to House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Canberra, 5 December 2005, 29 (Helen Daniels). In addition, AUSFTA itself calls for a ‘legislative or administrative review or proceeding’, which may suggest something more formal than a ‘discussion paper’ circulated from within a government department: see ibid art 17.4.7(e)(viii).
[82] The Attorney‑General’s justification for this approach was that ‘[t]his was a complex area in which I felt it was desirable that the parliament addressed its mind to these questions before we saw a complex bill’: Commonwealth, Parliamentary Debates, House of Representatives, 1 November 2006, 47 (Philip Ruddock, Attorney‑General). A legal expert was also seconded from the Attorney‑General’s Department to assist the Committee. In the event, the wisdom of the approach is at least questionable and the problems are discussed in the final report: see House of Representatives Standing Committee on Legal and Constitutional Affairs, TPM Inquiry Report, above n 73, 3–5.
[83] An approach which can hardly have been surprising, given a committee made up of legislators whose primary task, most of the time, is making decisions on matters of public policy: see Commonwealth, Parliamentary Debates, House of Representatives, 1 November 2006, 39 (Duncan Kerr).
[84] See above n 77 and accompanying text.
[85] Fiona Phillips, Intellectual Property Enforcement in Australia — An Evolving Approach, [28], WIPO Doc WIPO/ACE/3/10 (2006).
[86] Philip Ruddock, Attorney‑General of Australia, ‘Major Copyright Reforms Strike Balance’ (Press Release, 14 May 2006). The Attorney‑General mentioned in a speech in late 2005 that there was an ongoing review regarding the criminal offences, however, its scope was not explained at that time: see Philip Ruddock, Attorney‑General of Australia, ‘Opening Address — Copyright Law and Practice Symposium’ (Speech delivered at the Copyright Law and Practice Symposium, Australian National Maritime Museum, Sydney, 17 November 2005). The May 2006 press release did reveal that there would be on‑the‑spot fines — but not that they would apply effectively across the board in copyright law as the October 2006 draft revealed. These discrepancies meant that in fact it cannot be said that the changes to criminal law were truly revealed before October 2006 to anyone but a limited, biased set of stakeholders.
[87] Senate Standing Committee on Legal and Constitutional Affairs, SSCLCA Final Report, above n 78, 65. There were submissions to the inquiry arguing that there had been inadequate public consultation in relation to parts of the Bill: at 12–13.
[88] The IP Enforcement Interdepartmental Committee consists of representatives of the Attorney‑General’s Department (chair), the Australian Federal Police, the Office of the Commonwealth Director of Public Prosecutions, IP Australia, the Australian Customs Service, DFAT and the Australian Crime Commission.
[89] Membership from industry varies, but generally includes the Australian Federation against Copyright Theft, Music Industry Piracy Investigations, Business Software Association of Australia, Australian Subscription Television and Radio Association, Interactive Entertainment Association of Australia, Trade Mark Investigations Service, Australian Toy Association, Australian Sporting Goods Association, Anti‑Counterfeiting Action Group and Aristocrat Technologies Australia Proprietary Limited: email from Sam Ahlin (Senior Legal Officer, Attorney‑General’s Department) to Kimberlee Weatherall, 9 July 2007.
[90] Ruddock, ‘Major Copyright Reforms Strike Balance’, above n 86.
[91] Attorney‑General’s Department, Australia, Digital Agenda Review — Government Responses to Phillips Fox, above n 37.
[92] Phillips Fox, Digital Agenda Review, above n 24.
[93] Copyright Amendment (Technological Protection Measures) Bill 2006 (Cth); Exposure Draft: Copyright Amendment Regulations 2006 (Cth). The submissions are attached to the Attorney‑General’s Department Supplementary Submission: see Supplementary Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Provisions of the Copyright Amendment Bill 2006, 8 November 2006, Submission No 69B (Attorney‑General’s Department).
[94] The exposure drafts relating to exceptions, digital agenda review measures, and enforcement are no longer available online. However, it may be noted that in these areas, the exposure draft provisions were left unchanged prior to their introduction as part of the Copyright Amendment Bill 2006 (Cth), unlike the technological protection measure provisions referred to in above n 93, which changed considerably. The Exposure Draft: Copyright Amendment (Technological Protection Measures) Bill 2006 (Cth) remains available on the website of the Attorney‑General’s Department as at the time of writing: Attorney‑General’s Department, Australian Government, Copyright Amendment (Technological Protection Measures) Bill 2006 and Related Regulations — Exposure Drafts (2006) <http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_CopyrightAmendment(TechnologicalProtectionMeasures)Bill2006andrelatedRegulations-ExposureDrafts> .
[95] This was not the last: another exposure draft dealing with the jurisdiction of the Copyright Tribunal was released on 11 October 2006.
[96] This is discussed further: see below Part IV(B).
[97] One difficulty is that the rationale is an incomplete explanation of the legislation, which drew unexplained distinctions between different kinds of works. Moreover, as the government quickly discovered, its attempt to make the laws ‘tougher for pirates’ also, incidentally, extended criminal liability to ordinary consumer behaviour. To keep its message consistent, the government was forced to amend sch 1 extensively.
[99] It is interesting to speculate whether the process would have been different were it not for this power to pass without reference to other parties. Notably, both minor parties and the Labor party proposed amendments during debate: see below n 108. However, we must be careful not to assume that amendments would have occurred. More extensive proposals for amendment can safely be made by minor parties when the government has the numbers to pass legislation regardless.
[100] Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006 (Cth).
[101] Senate Standing Committee on Legal and Constitutional Affairs, SSCLCA Final Report, above n 78, 13–14.
[102] See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 1 November 2006, 30 (Nicola Roxon, Shadow Attorney‑General); Commonwealth, Parliamentary Debates, Senate, 29 November 2006, 36 (Joseph Ludwig) (‘botched process’), 38 (Labor motion), 39–40 (Andrew Bartlett) (‘derisory’, ‘little short of a disgrace’, ‘seriously flawed’), 107, 111 (Patricia Crossin); Commonwealth, Parliamentary Debates, Senate, 30 November 2006, 152 (Joseph Ludwig), noting that ‘[m]ost of the submitters complained [about the] truncated process’.
[103] Cf Jessica Litman, ‘War and Peace’ (2006) 53 Journal of the Copyright Society of the USA 1, 7: ‘In recent years, it has seemed as if negotiations over copyright amendments have lasted long enough to generate language that is long, complicated, counterintuitive and difficult to understand, but not long enough to produce a well‑written second draft.’
[104] Another example was the proposed amendment to Copyright Act 1968 (Cth) s 40, which would have imposed an unintended quantitative cap of 10 per cent on copying for research or study: see Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth)
[63]–[69]; Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Provisions of the Copyright Amendment Bill 2006, 10 November 2006, Submission No 52, 1–2 (Flexible Learning Advisory Group). See also Copyright Amendment Bill 2006 (Cth) sch 6 cl 11.
[105] At the time, U2 were touring the country and images were published of hundreds of concertgoers holding up mobile phones: see Lisa Murray, ‘Hold Those Phones, Rockers, Soon Your Recordings Will Be a Crime’, The Sydney Morning Herald (Sydney), 14 November 2006, 1; see also Simon Hayes, ‘Poddies Still Crooks under Copyright Law’, The Australian (Sydney), 21 November 2006, 27.
[106] Commonwealth, Parliamentary Debates, Senate, 29 November 2006, 36–7 (Joseph Ludwig); 102–3 (Kate Lundy); Commonwealth, Parliamentary Debates, House of Representatives, 5 December 2006, 65 (Nicola Roxon, Shadow Attorney‑General).
[107] Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth); Further Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth).
[108] The Labor opposition proposed amendments to the anti‑circumvention provisions, and urged that some provisions be removed pending further consultation: Commonwealth, Parliamentary Debates, Senate, 30 November 2006, 153–4, 167 (Joseph Ludwig); 175, 178 (Kate Lundy). The Greens and Democrats opposed the passage of the legislation.
[109] These sidelined issues include: reforms to the scope of the ISP safe harbours; indigenous communal moral rights; the removal of the one per cent cap on remuneration for broadcast of sound recordings; digital legal deposit issues; and the recommendations of the CLRC: Commonwealth Parliament, Crown Copyright (2005). In May 2006, proposals for a droit de suite were quietly shelved: Attorney‑General and Minister for the Arts and Sport, ‘New Support for Australia’s Visual Artists’ (Press Release, 9 May 2006). Some interest groups continue to press the idea: Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Indigenous Art: Securing the Future (2007) 159–76.
[110] On the difficulty of interpreting the highly complex provisions of the Copyright Act 1968 (Cth): see Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193, 207–8 (Gleeson CJ, Gummow, Hayne and Heydon JJ), 230–2 (McHugh J).
[111] Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) 1. The objectives of the Copyright Amendment Act 2006 (Cth) refer to ‘supporting the copyright industry’, the development of digital markets and protecting consumers’ ‘reasonable use’. There is no reference to more traditional copyright policy objectives, such as encouraging creativity, rewarding creators, or ensuring access to copyright works.
[112] See especially Copyright Amendment Act 2006 (Cth) schs 6–8, 10–11. It would be tempting to see these other areas as the outcome of interest group bargaining between collecting societies and institutional users. However, parts of the Bill appear to have been a surprise to stakeholders. Cf Jessica Litman argues that US legislators ‘delegated’ the writing of copyright legislation to industry interest groups: Jessica Litman, ‘Copyright Legislation and Technological Change’ (1989) 68 Oregon Law Review 275, 278; Jessica D Litman, ‘Copyright, Compromise, and Legislative History’ (1987) 72 Cornell Law Review 857, 869; Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (2001). See also William Patry, ‘The Failure of the American Copyright System: Protecting the Idle Rich’ (1997) 72 Notre Dame Law Review 907, 909.
[113] In particular, the introduction of Copyright Act 1968 (Cth) s 135ZMDA and the amendments to Copyright Act 1968 (Cth) s 135ZMB: see Copyright Amendment Act 2006 (Cth) sch 8 cll 7, 9.
[114] Consider, for example, the accommodation between ‘certainty’ and ‘flexibility’ in the drafting of copyright exceptions. According to the Attorney‑General, Copyright Act 1968 (Cth) s 200AB provided ‘flexibility’ to public institutions, and consumers were granted inflexible, but ‘certain’, personal copying exceptions: see Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Provisions of the Copyright Amendment Bill 2006, 8 November 2006, Submission No 69A, 2 (Attorney‑General’s Department). If this indicates trust in public institutions, it is inconsistently applied. Other parts of the Copyright Amendment Act 2006 (Cth) specifically removed ‘flexibility’ for public institutions: see amendments to Copyright Act 1968 (Cth) s 51A; Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) 122.
[115] Explanatory Memorandum, Copyright Amendment (Digital Agenda) Bill 1999 (Cth) 7.
[116] According to DFAT, Australia–United States Free Trade Agreement: Intellectual Property (2007) Australian Government <http://www.dfat.gov.au/trade/negotiations/us_fta/outcomes/08_intellectual
_property.htm>, the AUSFTA ‘[h]armonises our intellectual property laws more closely with the largest intellectual property market in the world’.
[117] See above n 81 and accompanying text; see also House of Representatives Standing Committee on Legal and Constitutional Affairs, TPM Inquiry Report, above n 73, 19–20.
[118] Cf the government’s approach to implementing international obligations on performers’ rights: Kimberlee Weatherall, ‘“Pretendy‑Rights”: On the Insanely Complicated New Regime for Performers’ Rights in Australia, and How Australian Performers Lost Out’ in Fiona Macmillan and Kathy Bowrey (eds), New Directions in Copyright Law (2006) vol 3, 171, 172.
[119] The increased ‘polarisation’ of all IP debates, including those over copyright, has often been noted: see, eg, Litman, ‘War and Peace’, above n 103, 4–5 (on the ‘copyright wars’); Robert P Merges, ‘One Hundred Years of Solicitude: Intellectual Property Law, 1900–2000’ (2000) 88 California Law Review 2187. For a brief discussion of the diverse interest group pressures operating in the copyright field: see Ricketson, ‘The Future of Australian Intellectual Property Law and Administration’, above n 8, 22.
[120] Commonwealth, Parliamentary Debates, Senate, 29 November 2006, 41 (Andrew Bartlett); 112, 114 (Christopher Ellison, Minister for Justice and Customs); Commonwealth, Parliamentary Debates, House of Representatives, 5 December 2006, 64 (Philip Ruddock, Attorney‑General), 65 (Nicola Roxon, Shadow Attorney‑General).
[121] The TPM Inquiry received 64 submissions (see House of Representatives Standing Committee on Legal and Constitutional Affairs, TPM Inquiry Report, above n 73, 2); the Senate Standing Committee on Legal and Constitutional Affairs received 74 submissions (see Senate Standing Committee on Legal and Constitutional Affairs, SSCLCA Final Report, above n 78, 55–8); and the Attorney‑General’s Department received 161 submissions in the Fair Use Review: see Attorney‑General’s Department, Copyright — Review of Fair Use Exception — May 2005 (26 June 2006) Australian Government <http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications
_Copyright-ReviewofFairUseExeption-May2005>. There were therefore at least 299 submissions. I say over 300 because this total does not count submissions made to Phillips Fox, Digital Agenda Review, above n 24, and an unknown number of private submissions made to the Attorney‑General’s Department, referred to in the chronology of consultations in Senate Standing Committee on Legal and Constitutional Affairs, SSCLCA Final Report, above n 78, 65.
[122] Commonwealth, Parliamentary Debates, Senate, 29 November 2006, 111 (Christopher Ellison, Minister for Justice and Customs). See also at 112 (Christopher Ellison, Minister for Justice and Customs), stating that ‘[m]ore consultations will not change [stakeholders’] views. There is no compromise that will make all stakeholders happy.’
[123] Edward C Page, Governing by Numbers: Delegated Legislation and Everyday Policy‑Making (2001) 12. In copyright law, it might be argued that the ‘general public’ have little to add to the debate about the law. As should be clear, I do not subscribe to this argument. Copyright law can gain legitimacy only through informed public discussion: see below n 131 and accompanying text. If it is too complicated for the public to understand, it may be time to pare down copyright law to its core: see Samuelson, above n 10.
[124] CLRC, Parliament of Australia, Report to Consider What Alterations Are Desirable in the Copyright Law of the Commonwealth (1959) (‘Spicer Committee Report’) 7.
[125] See, eg, Jim Rossi, ‘Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisionmaking’ (1997) 92 Northwestern University Law Review 173.
[126] Paul Kelly, ‘How Howard Governs’ in Nick Cater (ed), The Howard Factor: A Decade That Changed the Nation (2006) 3, 7–8.
[127] Paul Kelly, ‘Re‑Thinking Australian Governance — The Howard Legacy’ (Paper presented at the Cunningham Lecture, The Academy of Social Sciences, Canberra, 2005). The Administrative Review Council (‘ARC’), too, in its review of administrative rule‑making, has noted that while agencies do consult extensively, such consultations tend to be done informally, and are restricted to known sectional interests. The ARC has warned of the danger of ‘captured consultation’, where certain groups develop expectations about being consulted, while other viewpoints are excluded: see ARC, Rule‑Making by Commonwealth Agencies, Report No 35 (1992) 31.
[128] See Kelly, ‘How Howard Governs’, above n 126.
[129] Cf the passage in 2005 of amendments to the law of sedition, followed by referral to the Australian Law Reform Commission, culminating in: Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia, Report No 104 (2006).
[130] Cf Andrew Lynch, ‘Legislating with Urgency — The Enactment of the Anti‑Terrorism Act [No 1] 2005’ [2006] MelbULawRw 24; (2006) 30 Melbourne University Law Review 747.
[131] Jeremy Waldron, ‘Principles of Legislation’ in Richard W Bauman and Tsvi Kahana (eds), The Least Examined Branch: The Role of Legislatures in the Constitutional State (2006) 15, 18. Waldron goes on to point out that, for the citizen who disagrees with the substantive principles enacted in legislation, ‘one has to appeal to something about the way the law was enacted … so that he can see its enactment as fair even if he does not see its substance as just.’ For a similar point in a very different context: see ibid. In relation to copyright specifically: see Robert Burrell and Allison Coleman, Copyright Exceptions: The Digital Impact (2005) 280–2.
[133] Jane C Ginsburg, ‘How Copyright Got a Bad Name for Itself’ (2002) 26 Columbia Journal of Law & the Arts 61; Jon M Garon, ‘Normative Copyright: A Conceptual Framework for Copyright Philosophy and Ethics’ (2003) 88 Cornell Law Review 1278, 1282.
[134] See, eg, Commonwealth, Parliamentary Debates, Senate, 29 November 2006, 114 (Christopher Ellison, Minister for Justice and Customs), commenting that ‘the government has noted some of the media and other commentary on the Bill, much of which, disappointingly, referred to extreme and inaccurate scenarios rather than assessing the practical effect of these reforms … this undermines public confidence in copyright.’ A better way to put it, perhaps, is that the panic and the news stories tended to lead to copyright law ‘los[ing] the moral high ground’: see Litman, ‘War and Peace’, above n 103, 9. It should be noted, however, that the reactions were not confined to the ‘sensationalist’: see, eg, Allan Fels and Fred Brenchley, ‘Out of Tune with Reality’, The Australian Financial Review (Melbourne), 28 November 2006.
[135] On ‘consultation capture’: see ARC, above n 127.
[136] Burrell and Coleman, above n 131, 281.
[137] See above n 72 and accompanying text.
[138] Only three people sat on more than one of these committees: Senators George Brandis (SSCFTA, Senate Standing Committee on Legal and Constitutional Affairs), Andrew Bartlett (JSCOT, Senate Standing Committee on Legal and Constitutional Affairs) and Linda Kirk (JSCOT, Senate Standing Committee on Legal and Constitutional Affairs).
[139] Ricketson, ‘The Future of Australian Intellectual Property Law and Administration’, above n 8, 27–9; SSCFTA, SSCFTA Report, above n 54, 230 recommendation 6.
[140] Others have already begun this task: see Sally McCausland, ‘Protecting “A Fine Tradition of Satire”: The New Fair Dealing Exception for Parody or Satire in the Australian Copyright Act’ (2007) 29 European Intellectual Property Review 287; Dale Clapperton and Stephen Corones, ‘Locking in Customers, Locking out Competitors: Anti‑Circumvention Laws in Australia and Their Potential Effect on Competition in High Technology Markets’ [2006] MelbULawRw 22; (2006) 30 Melbourne University Law Review 657; Maree Sainsbury, ‘Parody, Satire, Honour and Reputation: The Interplay between Economic and Moral Rights’ (2007) 18 Australian Intellectual Property Journal 149.
[141] Similar trends have been observed in the US in relation to what Liu describes as ‘regulatory’ copyright: see Liu, above n 10, 102–5. There are differences, however. In the US there is no equivalent to the Attorney‑General’s Department. The closest equivalent, the Copyright Office, headed by the Register of Copyrights, is not part of a government department, but operates within the Library of Congress, which is actually part of the legislative branch of government, and hence somewhat independent from the executive. The Copyright Office provides advice to Congress on the development of copyright policy, and advises relevant government departments including the US Department of Commerce, the Department of State, and the Office of the US Trade Representative. It also operates the US Copyright Register, and administers Copyright Arbitration Royalty Panels.
[142] Max Weber, Economy and Society (1968) 958; Owen M Fiss, ‘The Bureaucratization of the Judiciary’ (1983) 92 Yale Law Journal 1442, 1450.
[143] One classic definition of a ‘bureaucracy’ is a complex organisation with three features: (1) a multitude of actors; (2) a division of functions or responsibilities among them; and (3) a reliance upon a hierarchy as the central coordination device: see Fiss, above n 142, 1444. Max Weber, in his early sociological work on bureaucracy, emphasises the growth of a set of specialised, qualified persons assigned full‑time to duties delimited by rules and managed through hierarchical relationships: see Weber, above n 142, 956–8. In the copyright context: see Streeter, above n 10, 570–2.
[144] Copyright Act 1968 (Cth) pt V div 2AA.
[145] Copyright Act 1968 (Cth) ss 36(1A), 101(1A). The fact‑specific nature of the assessment is demonstrated in the recent Full Court of the Federal Court decision in Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187; (2006) 156 FCR 380. CSPs may choose whether to rely on the law of authorisation, or the safe harbours in Copyright Act 1968 (Cth) pt V div 2AA.
[146] I acknowledge of course that under the safe harbours, CSPs may choose not to remove material they do not consider infringing. The regime however encourages them to act reflexively and automatically: any risk arising from non‑removal lies on the CSP.
[147] Copyright Act 1968 (Cth) s 116AJ; Copyright Regulations 1969 (Cth) pt 3A.
[148] Under the Statute of Anne 1710, 8 Anne, c 19, rights extended only to books entered into ‘the Register‑Book of the Company of Stationers’.
[149] Since the revision of the International Convention on the Protection of Literary and Artistic Works in 1908 in Berlin, copyright protection may not be made conditional on the existence of formalities: see International Convention for the Protection of Literary and Artistic Works, opened for signature 13 November 1908, [1912] ATS 9, art 4 (entered into force 9 September 1910); see also Berne Convention for the Protection of Literary and Artistic Works, opened for signature 24 July 1971, 1161 UNTS 3, art 5(2) (entered into force 1 March 1978) (‘Berne Convention’). Australia maintained a register until 1968. This was despite its abolition in the UK which provided the model for most of the original Copyright Act 1912 (Cth): see Robert Burrell, ‘Copyright Reform in the Early Twentieth Century: The View from Australia’ (2006) 27 Journal of Legal History 239, 257. Under s 26 of the Copyright Act 1912 (Cth), registration was optional, but certain ‘special remedies’ were available only to registered owners. The Australian register was abolished with the proclamation of the Copyright Act 1968 (Cth).
[150] The first collecting society in Australia was the Australasian Performing Right Association (‘APRA’), incorporated in 1926. For more historical background: see Simpson, above n 8, ch 3. Collecting societies are ‘bureaucratic’ in a very classical sense as described in the sources cited in above n 143: they are complex, rule‑bound organisations, which collect money almost like a tax on users and distribute it according to predetermined rules: see Streeter, above n 10, 576; Kretschmer, above n 10, 133–5.
[151] After APRA was established in Australia in 1926, it did not take long before there were calls to control this ‘monopolistic’ body: see Commonwealth, Royal Commission on Performing Rights, Final Report (1933) (‘Owen Commission’). The Owen Commission concluded that a tribunal should be established to counterbalance APRA’s monopolistic power. In 1943, the Parliamentary Standing Committee on Broadcasting similarly recommended compulsory arbitration for disputes between APRA, the Australian Broadcasting Commission, and the Federation of Commercial Broadcasting Stations: CLRC, Spicer Committee Report, above n 124, 66.
[152] As early as 1911, there was a compulsory licence for reproduction of published works for sale 25 years from the death of the author, without consent but with a fixed royalty: Copyright Act 1911, 1 & 2 Geo 5, c 46, ss 3−4, incorporated into Australian law by Copyright Act 1912 (Cth) s 8. There was also a compulsory licence for the making of records of musical works previously recorded: Copyright Act 1912 (Cth) s 19(2).
[153] Part VA (an educational statutory licence for the recording of off‑air broadcasts) and pt VB (an educational statutory licence for reproducing and communicating works) of the Copyright Act 1968 (Cth) were inserted into the Act in 1989: see Copyright Amendment Act 1989 (Cth)
ss 14–15. Educational institutions had long insisted that much of their copying fell under the free licence for research and study. This argument was rejected in Haines v Copyright Agency Ltd (1982) 64 FLR 182.
[154] Streeter, above n 10, 588–90 (discussing the ‘bureaucratic simulation’ of the market inherent in parts of US copyright law).
[155] Copyright Act 1968 (Cth) ss 135P, 135ZZB.
[156] Copyright Act 1968 (Cth) ss 135H, 135J, 135JA, 135ZU, 135ZV, 135ZW.
[157] Fiss, above n 142, 1442.
[158] Stephen Bottomley, ‘Where Did the Law Go? The Delegation of Australian Corporate Regulation’ (2003) 15 Australian Journal of Corporate Law 1. More generally, the tendency towards more complex bureaucracies has been noted by commentators going back to Max Weber himself: see Weber, above n 142, 971.
[159] In addition, as noted above, several of the changes to the exceptions were justified by the government as necessary to ensure the compliance of Australian law with the three‑step test contained in art 9(2) of the Berne Convention, opened for signature 24 July 1971, 1161 UNTS 3 (entered into force 1 March 1978); TRIPS, opened for signature 15 April 1994, 1867 UNTS 3, annex 1C, art 13 (entered into force 1 January 1995). The claim is at least questionable: see further below Part IV(A).
[160] The Attorney‑General has pointed this out a number of times: see above n 72.
[161] Copyright Amendment Act 2006 (Cth) sch 7.
[162] Consider, for example, the detailed provisions on record keeping under the statutory licences: Copyright Act 1968 (Cth) ss 135K, 135L, 135ZQ(3)–(4), 135ZX, 135ZY. The CLRC, in its draft report on the Copyright Tribunal, recommended removal of these provisions subject to a power in the Tribunal to make determinations. It received protests from both collecting societies and the Australian Vice‑Chancellors’ Committee: above n 63, 5. The original version of the Copyright Amendment Bill followed the CLRC recommendation: see, eg, Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) 188. Again, protests, and again, backdown: Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) 29.
[163] While the immediate period just passed experienced many copyright reforms, such a degree of parliamentary attention to the subject is very unusual. As I noted above, in recent times we had the interesting conjunction of political awareness, a deadline for reform, and a theme: see above Part II(B).
[164] There was no exception for private copying in Australian law. On the issue of private copying in the review: see Kimberlee Weatherall, ‘A Comment on the Copyright Exceptions Review and Private Copying’ (Working Paper No 14, IPRIA, The University of Melbourne, 2005).
[165] Ruddock, ‘Fair Use and Copyright in Australia’, above n 72, 6.
[166] Copyright Act 1968 (Cth) s 43C. It is not clear what ‘a different form’ means; there is no explanation in Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth). For one example: see Commonwealth, Parliamentary Debates, House of Representatives, 1 November 2006, 36 (Paul Neville).
[167] Copyright Act 1968 (Cth) s 47J.
[168] Copyright Act 1968 (Cth) s 109A. The exposure draft was narrower, allowing only a single copy of a sound recording in any given format. This, however, was inconsistent with the actual operation of devices which require copies on both a computer and the device. The exception was therefore amended: see Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) 8.
[169] Copyright Act 1968 (Cth) s 110AA.
[170] Copyright Act 1968 (Cth) s 111. This exception was specifically limited to radio and television content delivered via traditional broadcasting methods, not new methods such as the internet: see Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) 6–7; Copyright Act 1968 (Cth) ss 111(1), 10(1); Broadcasting Services Act 1992 (Cth) s 6(1).
[171] Copyright Act 1968 (Cth) ss 43C(3), (6), 47J(3), (6), 109A(3). In the case of sound recordings, the source of the recording is also determinative: Copyright Act 1968 (Cth) s 109A(1)(c).
[172] Subject to some additional requirements, in particular, the person must own both the sound recording they copy and the device onto which it is copied: Copyright Act 1968 (Cth) ss 109A(1)(a), (b). On the Attorney‑General’s Department’s view of the need to limit the exception: see SSCLCA Final Report, above n 78, 23.
[173] The government undertook to consider in two years’ time whether the format‑shifting exception for audio‑visual works should be extended beyond the ancient videotape: Attorney‑General’s Department, ‘Fair Use Review’, above n 70, 6.
[174] Copyright Act 1968 (Cth) ss 51B, 110BA (sound recordings and films), 112AA (published editions). Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) [6.104]–[6.105].
[175] The provisions distinguish between works held in manuscript, unpublished, or first record form (preservation copies allowed) or published form (preservation copies allowed where not available ‘within a reasonable time at an ordinary commercial price’). For original artistic works, the provision allows ‘up to three comprehensive photographic reproductions’.
[176] Three copies is said to be the number required by ‘international best practice guidelines for preservation’: Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) [76]. The original draft allowed one copy. See also Commonwealth, Parliamentary Debates, Senate, 29 November 2006, 37 (Joseph Ludwig), noting that the UNESCO standard is four copies, and that ‘splitting the difference … does not make sense’. The government response was that additional copies might be allowed under s 200AB: Commonwealth, Parliamentary Debates, Senate, 29 November 2006, 115 (Christopher Ellison, Minister for Justice and Customs). This seems inconsistent with ordinary canons of statutory interpretation. The government is also dictatorial regarding what uses may be made of the copies. They may only be made for ‘the purpose of preserving the work against loss or deterioration’, meaning that they may not be ‘made available to patrons, nor may they be used for copying to fulfil requests from other libraries or archives’: Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) [75].
[177] Copyright Act 1968 (Cth) ss 41A, 103AA.
[178] While s 200AB of the Copyright Act 1968 (Cth) does not specify ‘institutions or volunteers’, the banning of a commercial purpose or profit has essentially that effect.
[179] It is thus particularly interesting to note that the parody and satire defence was originally included in the arguably much less flexible Copyright Act 1968 (Cth) s 200AB, and only after protest from users was it redrafted as a fair dealing defence. The Exposure Draft was discussed in Patricia Loughlan, ‘Parody, Copyright and the New Four‑Step Test’ (2006) 67 Intellectual Property Forum 46. See also McCausland, above n 140, 290.
[180] Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) 12; Commonwealth, Parliamentary Debates, House of Representatives, 19 October 2006, 2 (Philip Ruddock, Attorney‑General). The Supplementary Explanatory Memorandum to the Copyright Amendment Bill 2006 (Cth) even uses the heading ‘Fair Use’ in relation to s 200AB: Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) [46]–[62].
[181] Albeit the categories used are drawn broadly. More specifically, libraries and archives may use the exception for copying ‘made for the purpose of maintaining or operating the library or archives’ or ‘to provide services of a kind usually provided by a library or archives’: Copyright Act 1968 (Cth) s 200AB(2)(b). Educational institutions may copy ‘for the purpose of giving educational instruction’: at s 200AB(3)(b). However, whether this is different from copies made for ‘educational purposes’ (the terminology of the statutory licences) is not entirely clear; and not‑for‑profit copying may be made by or for ‘a person with a disability that causes difficulty in reading, viewing, or hearing the work … in a particular form’ for the purpose of ‘obtaining a … copy … in another form, or with a feature, that reduces the difficulty’ : at s 200AB(4)(b).
[182] Copyright Act 1968 (Cth) s 200AB(6).
[183] Opened for signature 24 July 1971, 1161 UNTS 3 (entered into force 1 March 1978).
[184] Copyright Act 1968 (Cth) s 200AB(1)(a), (c), (d), (7). For treaty sources of the three‑step test: see above n 159.
[185] Carolyn Dalton, ‘Educating the Educators: Implementing the 2006 Copyright Amendments’ (Speech delivered at the Australian Centre for Intellectual Property in Agriculture 12th Annual Copyright Conference, Brisbane, 16 February 2007).
[186] As to the risk averse nature of the institutions involved: see Emily Hudson and Andrew Kenyon, ‘Digital Access: The Impact of Copyright on Digitisation Practices in Australian Museums, Galleries, Libraries and Archives’ [2007] UNSWLawJl 2; (2007) 30 University of New South Wales Law Journal 12.
[187] CAL has previously sued over guidelines: Haines v Copyright Agency Ltd (1982) 64 FLR 182.
[188] Copyright Act 1968 (Cth) s 51A(2).
[189] For the use of this provision and its importance to the running of libraries and archives: see Hudson and Kenyon, above n 186.
[190] Copyright Act 1968 (Cth) s 51A(6); Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) [6.102].
[191] This explanation of the provision was tendered by the Attorney‑General’s Department and DCITA: Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Advisory Report on the Copyright Amendment (Digital Agenda) Bill 1999 (1999) [3.37] (‘Andrews Committee Report’). It is consistent with the general position under copyright law that a copyright owner is only entitled to prevent, or demand payment for, the copying of a ‘substantial part’.
[192] See Copyright Amendment Act 2006 (Cth) sch 8 pt 3.
[193] This change has the potential to be significant as schools receive a 25 per cent discount in copyright fees for insubstantial copying: see Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Provisions of the Copyright Amendment Bill 2006, 30 October 2006, Submission No 25, 7 (Copyright Advisory Group to the Schools Resourcing Taskforce of the Ministerial Council on Education, Employment, Training and Youth Affairs). No similar change was made to the non‑digital exception: Copyright Act 1968 (Cth) s 135ZG; cf Copyright Act 1968 (Cth) s 135ZMB. The reason for the amendment appears to be complaints about ‘cherry‑picking’ from organisations like CAL: see Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Provisions of the Copyright Amendment Bill 2006, 30 October 2006, Submission No 29, 17 (CAL); see also Andrews Committee Report, above n 191, [3.32]–[3.42]. While the provision does not confer any discretion on the executive, its enactment does suggest to stakeholders that if they complain long enough, they may get the changes they want. This indirectly ensures that the executive will continue to be a focal point for lobbying.
[194] Of course, reconsideration would require legislative change — unilateral power to act has not been conferred on the executive. The role of the executive, however, does extend to the power to initiate the review, and bring forward any proposed new changes.
[195] It would also be fanciful to assume that, if guidelines are drafted in relation to Copyright Act 1968 (Cth) s 200AB, the government would not be involved in some way, given that the relevant institutions receive significant public funding. One would think, for example, that the Department of Education, Science and Training would be involved in some way, as would, of course, the Ministerial Council on Education, Employment, Training and Youth Affairs.
[196] Copyright Act 1968 (Cth) s 51B(1). This was a late amendment to the Bill, designed to allow scope ‘to consider the merits of claims of institutions other than those who have a statutory function of preserving a collection, but who nonetheless develop and maintain collections that are of historical and cultural significance to Australia’: Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) [73]. This is perhaps an example of a provision conferring power on the executive on the pragmatic grounds that further legislation in the area could take years.
[197] 17 USC §107 (2000 & Supp V, 2006). For a discussion: see Weatherall, ‘A Comment on the Copyright Exceptions Review and Private Copying’ above n 164; see also Attorney‑General’s Department, ‘Fair Use Review’, above n 70.
[198] Copyright Act 1968 (Cth) ss 48–53, 104A, 104B, 110A, 110B. There are good reasons for the specificity of the library and archives exceptions: designed for bureaucratic institutions, they provide rules capable of objective application, and require the establishment of systems and the keeping of records. For a discussion of open‑textured, as opposed to open‑ended exceptions: see Burrell and Coleman, above n 131, 276–310; Robert Burrell, ‘Reining in Copyright Law: Is Fair Use the Answer?’ [2001] Intellectual Property Quarterly 361.
[199] There is a respectable, although by no means universally held, opinion that the open‑ended fair use exception contravenes the Berne Convention three‑step test even in the US: see Ruth Okediji, ‘Toward an International Fair Use Doctrine’ (2000) 39 Columbia Journal of Transnational Law 75. There is an equally respectable view that the fair use exception in the US may not contravene the three‑step test, because the case law provides sufficient ‘certainty’ and specificity, but that the attempt to introduce a similar exception now in another country, without its elaboration in case law, would contravene the three‑step test: see Burrell and Coleman, above n 131, 249–74.
[200] Given markets for digital downloads, it is possible that some copying of sound recordings is not ‘fair’; but it is also possible that copying beyond the subject matters specified would be allowed under a fair private use exception.
[201] Opened for signature 24 July 1971, 1161 UNTS 3 (entered into force 1 March 1978).
[202] Ibid art 9(2); TRIPS, opened for signature 15 April 1994, 1867 UNTS 3, annex 1C, art 13 (entered into force 1 January 1995).
[204] It is also, by the by, arguably inconsistent with the approach adopted by the government in Copyright Act 1968 (Cth) s 200AB.
[205] Burrell and Coleman, above n 131, 217; Sam Ricketson and Jane Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (2005) vol 1, 763 (noting the ambiguity over the meaning of the test).
[206] In a different context, Professor Ricketson has argued that ‘factor‑based’ tests are consistent with the Berne Convention three‑step test for exceptions: Sam Ricketson, The Three‑Step Test, Deemed Quantities, Libraries and Closed Exceptions (2002) 64–7. Note that in the report Ricketson was considering a research and study exception; he has not considered specifically whether a personal copying exception, delimited by fairness determined according to a list of factors, could ever be consistent with art 9(2) of the Berne Convention and art 13 of TRIPS. The reasoning in the report does, however, suggest that a fairness test, along with a list of relevant factors, may provide sufficient certainty, the need for which appears to be the justification for the narrow drafting of the personal copying exceptions.
[207] Additional non‑negotiable conditions on fair dealing exceptions are not unheard of: see, eg, the requirements of ‘sufficient acknowledgment’ in the exception for criticism or review under s 41 of the Copyright Act 1968 (Cth).
[208] See Ruddock, ‘Fair Use and Copyright in Australia’, above n 72, 6, noting that there was little stakeholder support for a fair use exception.
[209] Although it is well beyond the scope of this article, one cannot help but wonder whether the particular nature of the copyright policy environment in Australia has a great deal to do with the adoption of bureaucratic rules. In short, most participants in the copyright reform process are highly bureaucratic organisations. The lead participants are the collecting societies and the Australian Record Industry Association on the ‘owner’ side, and the universities and libraries on the ‘user’ side. Missing are creators and even the big owners (although, as Streeter has pointed out, they too are very bureaucratic: Streeter, above n 10, 573), as are the technology and consumer electronics companies (of the electronics companies, it was really only Apple Incorporated which participated at early stages). Google Incorporated joined issue late in the piece, when the Copyright Amendment Bill 2006 (Cth) had already been drafted and the policy decisions had been made. It is battle by proxy to some extent, and the proxies are bureaucratic institutions. It may also be worth noting that the ‘in‑Department’ reform process favoured such participants, by giving most advantage to those accustomed to the lobbying process.
[210] See, eg, the presumptions as to subsistence and ownership (Copyright Act 1968 (Cth) ss 132A, 132B) introduced for the first time in relation to the copyright criminal offences in 2003 by the Copyright Amendment (Parallel Importation) Act 2003 (Cth) sch 4.
[211] For a discussion of why copyright enforcement is difficult and not a high priority: see Submission to House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Enforcement of Copyright in Australia, June 1999, Submission No 35 (Australian Federal Police). For complaints regarding the inadequate level of enforcement in this area: see Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Cracking Down on Copycats: Enforcement of Copyright in Australia (2000) 82–8 (‘Copycats Report’).
[212] Standing Committee on Legal and Constitutional Affairs, Copycats Report, above n 211, 42–3, discussing the low penalties imposed. Where penalties are low, general economic theories of criminal law suggest that the risk of detection and punishment must be high for deterrence to be effective: see Gary Becker, ‘Crime and Punishment: An Economic Approach’ (1986) 76 Journal of Political Economy 169. However, it is very difficult to make the risk high where infringing acts are common or widespread. Deterrence is a factor in making the decision to prosecute: see Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth: Guidelines for the Making of Decisions in the Prosecution Process (2nd ed, 1990) 9 (‘Prosecution Policy of the Commonwealth’). It follows that where deterrence is difficult to achieve, prosecution will be a less attractive option for law enforcement agencies.
[213] Attorney General’s‑Department as quoted in Senate Standing Committee on Legal and Constitutional Affairs, SSCLCA Final Report, above n 78, 18.
[214] There is significant literature questioning whether, and in what circumstances, criminal enforcement of copyright is appropriate: see, eg, Geraldine Szott Moohr, ‘The Crime of Copyright Infringement: An Inquiry Based on Morality, Harm, and Criminal Theory’ (2003) 83 Boston University Law Review 731.
[215] Criminal Code ss 3.1, 5.1 refer to the ‘mental element’ or mens rea as a ‘fault element’.
[216] The Exposure Draft: Copyright Amendment (Technological Protection Measures) Bill 2006 (Cth) applied these three tiers almost across the board, with the exception of offences under Copyright Act 1968 (Cth) ss 132AC (infringements on a commercial scale), 132AM (advertising supply of infringing copies), 132APC–132APE (the technological protection measure offences), 132ASA–132ASJ (the encoded broadcast offences). The SSCLCA Final Report and media attention (see above n 105) led to the removal of several strict liability offences affecting non‑commercial acts: see Further Supplementary Explanatory Memorandum, Copyright Amendment Bill 2006 (Cth) [1]–[26]. For a list: see Attorney‑General’s Department, Australia, ‘New Australian Copyright Laws: Criminal Offence Provisions’ (Fact Sheet, 2007).
[217] Corporations may be fined up to five times that amount: Crimes Act 1914 (Cth) s 4B(3).
[218] Criminal Code s 5.6 specifies the default fault element for various physical elements. Recklessness is defined: at s 5.4.
[219] Note that this means negligent as to the underlying facts which make the copy infringing, not negligence as to the legal status of their act. This makes it very difficult to understand how these mental elements will apply. Once you know, for example, that you are dealing with computer software (which is all within the period of the copyright term) — what takes you from ‘negligence’ as to your authorisation to deal with the copy, to ‘recklessness’? Detailed examination is beyond the scope of this article; suffice it to say it is uncertain.
[220] The defence of mistake of fact applies where a person acts under a ‘mistaken but reasonable belief’ as to the circumstances: Criminal Code ss 6.1, 9.2.
[221] Copyright Act 1968 (Cth) s 133B; Copyright Regulations 1969 (Cth) pt 6A.
[222] Copyright Act 1968 (Cth) s 133B(1); Copyright Regulations 1969 (Cth) reg 23V.
[223] Twelve penalty units, or 20 per cent of the maximum for the strict liability offences: Copyright Regulations 1969 (Cth) reg 23R. Commonwealth policy provides that the penalty in an infringement notice should be one‑fifth of the maximum penalty for the offence, and should not exceed 12 penalty units for a natural person: Australian Government, A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers (2004) 46–7. The level of fines chosen is the maximum allowed by Commonwealth policy, which is interesting given the additional punitive effect of the forfeiture requirement: see below n 224.
[224] Copyright Act 1968 (Cth) s 133B(1)(b); Copyright Regulations 1969 (Cth) reg 23M. The requirement of forfeit may significantly compound the penalty; however, the definition of the relevant devices in s 133B of the Copyright Regulations 1969 (Cth) and reg 23N of the Copyright Regulations 1969 (Cth) appears to confine the definition to devices ‘made to be used for making an infringing copy of a work’ — a narrow definition that would exclude ordinary electronics. Note that if the authorised person issuing the notice requires forfeiture, and the recipient refuses, then an infringement notice cannot be given: Copyright Regulations 1969 (Cth) reg 23O.
[225] Copyright Regulations 1969 (Cth) reg 23O(1)(a). See also at reg 23P(1)(a).
[226] Copyright Regulations 1969 (Cth) reg 23V. Payment of the fine, just like the payment of a traffic fine, is not an admission of guilt, nor does it lead to a criminal record. Prosecution does not follow inevitably from a refusal to pay the fine.
[227] There has been some confusion about how this operates in practice. In law, liability arises in respect of infringing ‘articles’ (see, eg, Copyright Act 1968 (Cth) s 132AD), which might suggest physical things, such as CDs. This is how the law was understood by the Minister for Justice and Customs: see Commonwealth, Parliamentary Debates, Senate, 30 November 2006, 164 (Christopher Ellison), stating it ‘does not matter how many songs are on there; it is the article for which you are fined. It would not be a case of being fined 13 times, for each different song on the article.’ However, ‘articles’ in fact includes electronic copies of works (Copyright Act 1968 (Cth) s 132AA), and draft guidelines issued by the Attorney‑General’s Department state that ‘[t]echnically, for each song, there would be a separate breach’: Attorney‑General’s Department, Australia, Draft Guidelines: Copyright Amendment Regulations 2006: Infringement Notices and Forfeiture of Infringing Copies and Devices Scheme (2007). This may, however, not be accurate: see Submission to the Attorney‑General’s Department on the Draft Guidelines for Infringement Notices and Forfeiture of Infringing Copies and Devices Scheme, 10 October 2007, Submission No 1992 (Law Council of Australia) <http://www.lawcouncil.asn.au/sublist.html?year=2007> .
[228] There are also distribution offences which apply in cases where the distribution is sufficient in scale to ‘affect prejudicially the owner of the copyright’: Copyright Act 1968 (Cth) ss 132AI. Moreover, there is a further provision for infringements (more generally, not involving distribution necessarily) which are on a commercial scale and have a ‘substantial prejudicial impact’ on the copyright owner: at s 132AC. Offences relating to the recording of live performances have not tended to include a requirement that the recording be for commercial purposes, merely that it be unauthorised: at pt XIA div 3.
[229] Copyright Act 1968 (Cth) s 132AA.
[230] Regarding the application of Australian law to this kind of ‘end user piracy’: see Attorney‑General’s Department, Australia, Interpretive Note on End User Piracy, Appendix to Letter from Mark Vaile (Minister for Trade) to Robert Zoellick (United States Trade Representative), 17 November 2004 <http://www.ustr.gov/Trade_Agreements/Bilateral/Australia_FTA/ Section
_Index.html>.
[231] Criminal Code s 12.3(2)(c)–(d). For a discussion of these provisions: see Jennifer Hill, ‘Corporate Criminal Liability in Australia: An Evolving Corporate Governance Technique’ [2003] Journal of Business Law 1, 16–20.
[232] Criminal Code s 12.5(1)(b). Factors relevant to due diligence include whether the company had ‘adequate systems for conveying relevant information to relevant persons in the body corporate’: at s 12.5(2)(b).
[233] Although note, on the point of budget constraints, that the then Attorney‑General later announced $12.4 million in additional funding: Philip Ruddock, ‘More Resources to Stop Piracy and Counterfeiting’ (Press Release, 8 May 2007).
[234] Australian Federal Police, Annual Report 2005–06 (2006) 10, quoting the Ministerial Direction dated 31 August 2004 under the Australian Federal Police Act 1979 (Cth) s 37(2).
[235] Commonwealth Director of Public Prosecutions, above n 212, 9.
[236] See Senate Standing Committee on Legal and Constitutional Affairs, SSCLCA Final Report, above n 78, 18–19.
[237] Commonwealth, Parliamentary Debates, Senate, 29 November 2006, 113 (Christopher Ellison, Minister for Justice and Customs); see also Commonwealth, Parliamentary Debates, Senate, 30 November 2006, 164–5 (Christopher Ellison, Minister for Justice and Customs), explaining that:
throughout my remarks in support of these amendments I have mentioned that the aim of the legislation is to target those pirates who are the ‘genuine pirates’, if I can call them that … from my knowledge of the AFP and the people they have been targeting, it would … be those people down at the markets who are selling CDs in a very organised fashion. They are the ones who are doing all the damage.
[238] Cf Customs Act 1901 (Cth) s 243 XA, which makes the infringement notice guidelines under that Act a disallowable instrument and thus subject to parliamentary scrutiny.
[239] In theory, the actual discretion to determine enforcement policies here could lie with the Attorney‑General’s Department, which drafts the guidelines, or with the actual enforcement agencies — that is, the police. Interestingly, when the government issued a draft version of its guidelines on the issue of infringement notices in August 2007, it did very little to structure the discretion of the police or prosecutorial authorities: Attorney‑General’s Department, Australia, Draft Guidelines: Copyright Amendment Regulations 2006, above n 227, 8.
[241] Licensing by commercial entities for such activities is listed by CAL as a potential area for growth in licensing revenues in its recent annual reports: see CAL, Annual Report 2005–06 (2006) 2; Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Provisions of the Copyright Amendment Bill (2006), 30 October 2006, Submission No 29, 11–12, 20 (CAL). In August 2006, the CAL issued a press release promoting the licence and noting that ‘businesses need to be more aware of their copyright obligations following the recent changes to the Copyright Act’: CAL, ‘Businesses Urged to Consider Digital Copyright’ (Press Release, 15 August 2007).
[242] In fact, academic literature has advocated an almost ‘traffic‑fine‑like’ approach towards online infringement: see Lemley and Reese, above n 10, 1418.
[243] Senate Standing Committee on Legal and Constitutional Affairs, SSCLCA Final Report, above n 78, 19 (emphasis added).
[244] See, eg, Tradex Scheme Act 1999 (Cth) s 28; Customs Act 1901 (Cth) ss 243T–243V, 243Y; Superannuation (Government Co‑Contribution for Low Income Earners) Act 2003 (Cth) ss 16, 20; Excise Act 1901 (Cth) ss 117, 117B.
[245] See, eg, Corporations Act 2001 (Cth) s 1317DAC; Broadcasting Services Act 1992 (Cth) s 65B; Financial Sector (Collection of Data) Act 2001 (Cth) s 19; Education Services for Overseas Students Act 2000 (Cth) ss 104–6; Quarantine Act 1908 (Cth) s 70A; Water Efficiency Labelling and Standards Act 2005 (Cth) pt 7.
[246] See, eg, Fisheries Management Regulations 1992 (Cth) pt 10; Broadcasting Services Act 1992 (Cth) s 65B; Migration Act 1958 (Cth) s 280; Civil Aviation Act 1988 (Cth) ss 30DY–30EE.
[247] See, eg, Environment Protection and Biodiversity Regulations 2000 (Cth) sch 10; Great Barrier Reef Marine Park Regulations 1983 (Cth) pt 14; Airports (Environment Protection) Regulations 1997 (Cth) pt 8 div 2.
[248] See, eg, Airports Act 1996 (Cth) s 208; Airport (Building Control) Regulations 1996 (Cth) pt 5 div 2; Aviation Transport Security Act 2004 (Cth) s 117; Interstate Road Transport Regulations 1986 (Cth) reg 52(2); Maritime Transport and Offshore Facilities Security Act 2003 (Cth) s 187; National Transport Commission (Road Transport Legislation — Heavy Vehicles Registration Act) Regulations 2006 (Cth) sch 1 pt 3; Road Transport Reform (Dangerous Goods) Act 1995 (Cth) pt 5; Therapeutic Goods Act 1989 (Cth) s 42YJ.
[249] There are some exceptions that do not fit readily into these categories: see, eg, Spam Act 2003 (Cth) s 30, which authorises the provision of infringement notices for contravention of, for example, ss 16 (sending spam) and 20 (address‑harvesting). These notices may be aimed at the legitimate business which makes a mistake, rather than the large‑scale spammer. This is potentially similar to the kind of enforcement we could see in copyright law. The Defence Force Discipline Act 1982 (Cth) also has a series of infringement notice provisions for minor disciplinary offences: at ss 23, 27, 29, 32(1), 35, 60. The Workplace Relations Regulations 2006 (Cth) have a miscellaneous set of provisions with infringement notices: see pts 19, 19B. None of these areas concerns the protection of private property rights.
[250] See, eg, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Provisions of the Copyright Amendment Bill (2006), 30 October 2006, Submission No 38, 3 (Australian Recording Industry Association).
[251] This was done, but later: see Ruddock, ‘More Resources to Stop Piracy and Counterfeiting’, above n 233.
[252] For example, state police have the power to enforce criminal copyright provisions, but because copyright is a Commonwealth law, a different set of procedures applies than for prosecutions under state law; this suggests that measures to overcome these basic procedural problems might be a useful practical step.
[253] See also Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Provisions of the Copyright Amendment Bill 2006, Undated, Submission No 54A, 2–3 (Kimberlee Weatherall).
[254] See Supplementary Submission to SSLCA, Inquiry into Provisions of the Copyright Amendment Bill 2006, 9 November 2006, Submission No 57B, 1 (Australian Federation Against Copyright Theft) noting that ‘over 90% of the 13 million pirate movies sold or the 11 million downloaded in Australia in 2005 started life with a person copying the film in a cinema with an ordinary camcorder’.
[255] Where the alleged criminal breach affects the plaintiff’s personal rights or would inflict special damage on them: Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435.
[256] Standing Committee on Legal and Constitutional Affairs, Copycats Report, above n 211,
[3.22]–[3.23]; see also Tim Prenzler and Michael King, ‘The Role of Private Investigators and Commercial Agents in Law Enforcement’ (2002) 234 Trends and Issues in Crime and Criminal Justice 1, 3.
[257] Crimes Act 1914 (Cth) s 13; Director of Public Prosecutions Act 1983 (Cth) s 10(2). The Commonwealth Director of Public Prosecutions has the power to take over a private prosecution: Director of Public Prosecutions Act 1983 (Cth) s 9(5). According to the Prosecution Policy of the Commonwealth, the private prosecutor should be permitted to retain the prosecution unless there is insufficient evidence, there are grounds to suspect that ‘the decision to prosecute was actuated by improper personal or other motives’, or to proceed would be ‘contrary to the public interest’: Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth, above n 212, 17.
[258] See, eg, Law Commission, England and Wales, Consents to Prosecution: A Consultation Paper, Law Com No 149 (1997) (recommending private prosecutions in IP be brought to an end); Gwilym Harbottle, ‘Private Prosecutions in Copyright Cases: Should They Be Stopped?’ [1998] European Intellectual Property Review 317 (defending the option); Law Commission, England and Wales, Consents to Prosecution: A Final Report, Law Com No 255 (1998) (retreating from recommendation to abolish, and supporting their continuation on the basis of feedback received). See also Standing Committee on Legal and Constitutional Affairs, Copycats Report, above n 211, [4.59]–[4.60].
[259] There is a significant body of commentary expressing the view that private prosecutions are of little or no value in a context where there exists a professional, independent prosecuting service — namely, the Director of Public Prosecutions: see Jones v Whalley [2007] 1 AC 63, 71 (Lord Bingham); Law Commission, New Zealand, Criminal Prosecution, Report No 66 (2000) [258].
[260] For example, cutting across public prosecution policies: concerns about the ‘unduly vengeful or vexatious’ private prosecutor (Law Commission, New Zealand, above n 259); the oppressiveness of using criminal proceedings when civil proceedings would be just as appropriate (Thames & Hudson Ltd v Design & Artists Copyright Society Ltd [1995] FSR 153; Law Commission, England and Wales, Consents to Prosecution: A Consultation Paper, above n 258, [6.48]); the potential for use of criminal proceedings by a private prosecutor to bolster their negotiating position in a civil dispute (Law Commission, England and Wales, Consents to Prosecution: A Final Report, above n 258, 68); and the risks of excessive litigation by powerful companies: Andrew Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 Law Quarterly Review 225, 235. Cf Harbottle, above n 258, 318–20.
[261] See also Clapperton and Corones, above n 140.
[262] The submissions are appended to the Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Provisions of the Copyright Amendment Bill 2006, Undated, Submission No 69B (Attorney‑General’s Department). The changes made, and their significance, are discussed in Dale Clapperton, ‘The Elusive “Link” to Infringement in the Copyright Amendment Bill 2006: Now You See It, Now You Don’t’ (2007) 19 Australian Intellectual Property Law Bulletin 141–4; Kimberlee Weatherall, ‘Response to Dale Clapperton’s Article’ (2007) 19 Australian Intellectual Property Law Bulletin 145.
[263] Opened for signature 18 May 2004, [2005] ATS 1, art 17.4.7 (entered into force 1 January 2005). See generally Rimmer, above n 37; Emma Caine and Kimberlee Weatherall, ‘Australia–US Free Trade Agreement: Circumventing the Rationale for Anti‑Circumvention?’ (2005) 7 Internet Law Bulletin 121; House of Representatives Standing Committee on Legal and Constitutional Affairs, TPM Inquiry Report, above n 73.
[264] 17 USC §1201(a)(1)(C) (2000 & Supp V, 2006); House of Representatives Standing Committee on Legal and Constitutional Affairs, TPM Inquiry Report, above n 73, 138–9.
[265] The role of the Copyright Office is described: see above n 141.
[266] This forms an interesting contrast with the ISP safe harbours, where even the machinery was specified in a side letter: see above nn 144–7 and accompanying text.
[268] Many stakeholders rejected the Copyright Tribunal as being an unsuitable body for various reasons: see House of Representatives Standing Committee on Legal and Constitutional Affairs, TPM Inquiry Report, above n 73, 142.
[269] Ibid 141.
[270] Ibid 143–7; see also Copyright Act 1968 (Cth) s 249; Copyright Regulations 1969 (Cth) reg 20Z, sch 10A.
[271] There is no general legal requirement that persons affected by the making of subordinate rules should be heard by the rule‑maker: G J Craven, ‘Legislative Action by Subordinate Authorities and the Requirement of a Fair Hearing’ [1988] MelbULawRw 5; (1988) 16 Melbourne University Law Review 569.
[272] As noted above, submissions from Attorney‑General’s Department, ‘Fair Use Review’, above n 70, were not initially published; nor were submissions on the Exposure Draft: Copyright Amendment (Technological Protection Measures) Bill 2006 (Cth) until requested by the Senate Standing Committee on Legal and Constitutional Affairs.
[273] There was no process of reply submissions in the TPM Inquiry by the House of Representatives Standing Committee on Legal and Constitutional Affairs, although there was a process of reply in another, mini‑review run by the Attorney‑General’s Department more recently. Compare the process applied in the US: see above n 264 and accompanying text.
[274] Under Australian law, regulations must be notified in the Commonwealth of Australia Gazette, and then tabled before each House of Parliament within 15 days of having been made. Within 15 sitting days of tabling, a motion of disallowance may be made, in which case the regulations will be debated. However, they need not be passed or formally approved by the Parliament. Bottomley, above n 158, 11 has also noted, citing Page, above n 123, 8–9, that the level of ministerial involvement in the making of regulations is less than that would be expected during the drafting of legislation. It is unclear whether the same would be true in this context.
[275] Cf House of Representatives Standing Committee on Legal and Constitutional Affairs, TPM Inquiry Report, above n 73, 143, which proposed that the ‘public nature of any future inquiries be set out in the Copyright Act 1968’, and that the process be made ‘as transparent as possible with all material considered by the review available publicly.’ Transparency has not been a feature of the recent reviews by the Attorney‑General’s Department.
[276] Amusingly, the Exposure Draft: Copyright Amendment (Technological Protection Measures) Bill 2006 (Cth) reserved an even broader discretion to the government — it allowed the Minister to respond to any submission seeking an exception any time within four years of receiving it: at s 116AK(9)–(13).
[277] There is a vast literature on how digital rights management works, and how it interacts with anti‑circumvention law, but a general level introduction may be found in House of Representatives Standing Committee on Legal and Constitutional Affairs, TPM Inquiry Report, above n 73.
[278] Submission to House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, 21 October 2005, Submission No 38 (Kimberlee Weatherall).
[279] European Parliament and Council, Directive on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, 2001/29/EC (2001).
[280] Ibid art 6.4.
[281] For a detailed discussion of the merits of the fair use by design approach: see Burrell and Coleman, above n 131, 70–5. For a discussion of the issues of using copyright law to influence copying technologies: see Andrew T Kenyon and Robin Wright, ‘Television as Something Special? Content Control Technologies and Free‑to‑Air TV’ [2006] MelbULawRw 12; (2006) 30 Melbourne University Law Review 338.
[282] Copyright Amendment Act 2006 (Cth) schs 10–11.
[283] The new powers include the power to: declare or revoke the declaration of a collecting society (Copyright Act 1968 (Cth) ss 135P, 135Q, 135ZZB, 135ZZC, 135ZZT, 135ZZU); make determinations regarding all licences administered by collecting societies (at s 136); entertain applications made by collecting societies, or members of those societies, for review of the arrangements for allocating and distributing remuneration (at ss 135SA, 135ZZEA, 135ZZWA, 183F); and more generally, make determinations on ‘any question that is necessary or convenient to help an administering body of an educational or other institution or the collecting society to comply in the future with the requirements of the statutory licences’: at ss 135JAA, 135JZWAA.
[284] The ACCC was given a role in proceedings before the Copyright Tribunal, which may have regard to any relevant guidelines issued by the ACCC when making a determination (Copyright Act 1968 (Cth) s 157A), and admit the ACCC as a party to Tribunal proceedings (Copyright Act 1968 (Cth) s 157B): see ACCC, Copyright Licensing and Collecting Societies: A Guide for Copyright Licensees: Draft for Comment (2006) 5, 33.
[285] The Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth) gave the ACMA ‘more general powers … to determine standards’ in relation to communication technologies: Revised Explanatory Memorandum, Broadcasting Legislation Amendment (Digital Television) Bill 2006 (Cth) 81 (discussing sch 2A of the Bill). The ACMA now has the power to set technical standards relating to the transmission of, and receivers for, digital television broadcasting and datacasting services: Broadcasting Services Act 1992 (Cth) ss 130A–130B. In the US, similar powers granted to the Federal Communications Commission were used in order to require television reception equipment to recognise the ‘Broadcast Flag’ — that is, copyright protecting technology, although this was later overturned: see generally David Brennan, ‘Flag Waving in the Digital Jungle’ in Andrew T Kenyon (ed), TV Futures: Digital Television Policy in Australia (2007) 214; Kenyon and Wright, above n 281. The Broadcasting Legislation Amendment (Digital Television) Act 2006 (Cth) sch 2A also added a new pt 9B to Broadcasting Services Act 1992 (Cth), giving ACMA the power to register, and hence make enforceable, industry codes, which could deal with such matters as Electronic Program Guides (‘EPGs’).
[286] See above nn 144–7 and accompanying text.
[287] Cf corporate law, where the Australian Securities and Investments Commission maintains primary responsibility, although there are others involved, such as the Australian Stock Exchange: Bottomley, above n 158, 1–4.
[289] SSCFTA, SSCFTA Report, above n 54, 230. The recommendation was for ‘a Select Committee on Intellectual Property to comprehensively investigate and make recommendations for an appropriate IP regime for Australia in light of the significant changes required to Australian IP law by the AUSFTA.’ It was aimed at dealing with the AUSFTA changes, so is perhaps less relevant now. However, a standing committee of the type proposed, also recommended by Ricketson, could exercise consistent oversight by Senators who would not have to educate themselves each time about copyright: see above n 8; cf above n 138 and accompanying text. The government’s response to this was that no such committee was necessary, given that Australia’s IP legislation is ‘extensively governed’ by commitments in multilateral and bilateral treaties: Australian Government, Government Response to the Final Report of the Senate Select Committee on the Free Trade Agreement between Australia and the United States of America, 4 <http://www.aph.gov.au/senate_freetrade/gov_response/gov_response.pdf> .