02.08.2010

Copyright law

28.4 Copyright protects the form of expression of ideas, rather than the ideas, information or concepts expressed.[2] The Copyright Act 1968 (Cth) (Copyright Act) regulates copyright in Australia in relation to original literary, dramatic, musical and artistic works, and subject matter other than works.

28.5 Copyright is addressed in several international treaties, in particular the Berne Convention for the Protection of Literary and Artistic Works 1886 (Berne Convention) and the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement). These conventions define minimum periods and levels of protection for copyright in member States, and provide for limitations and exceptions to copyright in certain circumstances.[3]

Current law and practice

Subsistence of copyright

28.6 Copyright in a literary, dramatic or musical work includes the exclusive right to reproduce the work in a material form; publish the work; perform the work in public; communicate the work to the public; make an adaptation of the work; enter into a commercial rental arrangement in respect of the work reproduced in a sound recording; and, for computer programs, enter into a commercial rental arrangement in respect of that program.[4]

28.7 Copyright subsists in an unpublished literary, dramatic, musical or artistic work if the author was a ‘qualified person’[5] at the time the work was made or for a substantial part of this time. Copyright subsists in a published work if the work is first published in Australia;[6] if the author was a ‘qualified person’ at the time the work was first published; or if the author died before that time but was a ‘qualified person’ immediately before his or her death.[7]

28.8 In order to attract copyright, a work must be an original literary, dramatic, musical, or artistic work.[8] A literary work includes a table or compilation expressed in words, figures or symbols; and a computer program or compilation of computer programs.[9] A literary work need not display literary merit; however, it is usually intended to convey information and instruction, or pleasure, in the form of literary enjoyment.[10]

28.9 A work need not be the expression of original or inventive thought, but it must originate with an author and must not be a copy. A work originates with an author if it is the product of the author’s skill, labour and expertise or experience. The requisite degree of labour, skill and expertise will depend on the facts of the case and will be a question of degree.[11] In Australia, the Federal Court has held that, for compilations, originality can flow purely from the ‘sweat of the brow’ involved in collecting, verifying and presenting information, even if there is no creativity involved in its selection or arrangement.[12]

28.10 In the United States, courts have held that copyright does not subsist in facts or ideas, and where the idea and its expression merge, copyright does not subsist in the expression. This is known as the ‘merger doctrine’; where an idea has only one possible form of expression, copyright does not extend to that expression.[13] It is unclear whether the merger doctrine applies in Australian copyright law.[14] In a recent Federal Court case, Lindgren J commented that the doctrine does not apply in relation to ‘whole of universe’ factual compilations, such as a telephone directory.[15]

Copyright infringement

28.11 Copyright is infringed if a person does or authorises the doing, in Australia, of any act falling within the copyright in a work without the copyright owner’s permission.[16] Such conduct must relate to the whole or a ‘substantial’ part of the work, and the test of substantiality refers primarily to the quality of what is taken.[17]

Fair dealing for research or study

28.12 The Copyright Act provides for certain acts of ‘fair dealing’ in a copyright work, which constitute exceptions to copyright infringement.[18] One such exception is fair dealing for the purpose of research or study.[19] Section 40(2) provides guidelines for determining whether the reproduction of the whole or a part of a work constitutes a fair dealing for the purpose of research or study. These factors include:

  • the purpose and character of the dealing;

  • the nature of the work or adaptation;

  • the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price;

  • the effect of the dealing upon the potential market for, or the value of, the work or adaptation; and

  • where only a part of the work is copied, the amount and substantiality of that part compared to the whole work or adaptation.[20]

28.13 Section 40(3) provides that the reproduction of specified amounts of a work will be deemed to be a fair dealing if conducted for the purpose of research or study. These amounts are:

  • in the case of a work comprising an article in a periodical publication, the whole or part of the work; or

  • in any other case, not more than a ‘reasonable portion’ of the work.[21]

28.14 In 1998, the Copyright Law Review Committee (CLRC) recommended that the Copyright Act be amended to: consolidate the current fair dealing provisions into a single provision; expand fair dealing to an open-ended model that refers to the existing set of purposes, but is not confined to them; and apply the non-exclusive set of factors provided for in s 40(2) to all fair dealing.[22] The Australian Government has not yet announced a decision to implement these recommendations.

Reviews and proposed amendments

28.15 Aspects of the Copyright Act have been reviewed by various bodies in recent years. The CLRC examined several options for simplifying the Copyright Act,[23] and the relationship between copyright and contract.[24] The Intellectual Property and Competition Review Committee (IPCRC) examined the application of competition principles to copyright law.[25] The Attorney-General’s Department conducted a review of the operation of the digital agenda amendments to the Copyright Act, and engaged the law firm, Phillips Fox, to conduct a major part of the review.[26]

28.16 On 18 May 2004, the Australian Trade Minister (the Hon Mark Vaile) and the United States Trade Representative (Robert Zoellick) signed the Australia–United States Free Trade Agreement (AUSFTA). Under the AUSFTA, Australia has agreed to bring various aspects of its copyright law into greater harmony with United States copyright law.[27]

[2] J McKeough, A Stewart and P Griffith, Intellectual Property in Australia (3rd ed, 2004), 150.

[3]Berne Convention for the Protection of Literary and Artistic Works (1886); Agreement on Trade-Related Aspects of Intellectual Property Rights (Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization), [1995] ATS 8, (entered into force on 1 January 1995).

[4]Copyright Act 1968 (Cth) s 31(1).

[5] A ‘qualified person’ is an Australian citizen, resident or an Australian protected person: Ibid s 32(4).

[6] ‘Publication’ is the authorised supply of reproductions of a work to the public: Ibid s 29(1).

[7] Ibid s 32. In addition, the Copyright (International Protection) Regulations 1969 (Cth) confer a similar protection on most works that are made or published overseas.

[8]Copyright Act 1968 (Cth) s 32.

[9] Ibid s 10(1).

[10] R Reynolds and N Stoianoff, Intellectual Property: Text and Essential Cases (2003), 42–44, citing Hollinrake v Truswell [1894] 3 Ch 420.

[11] S Ricketson and C Creswell, The Law of Intellectual Property: Copyright, Designs and Confidential Information: Looseleaf Service (1999), [7.50], [7.60].

[12]Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 192 ALR 433. See also J Lahore, Patents, Trade Marks & Related Rights: Looseleaf Service (2001), [10,065], [10,115].

[13] See J McKeough, A Stewart and P Griffith, Intellectual Property in Australia (3rd ed, 2004), 155–156.

[14] Some commentators have suggested that Australian courts have accepted the principle, while others suggest that the High Court has impliedly rejected it: see Ibid, 156; R Reynolds and N Stoianoff, Intellectual Property: Text and Essential Cases (2003), 21–22.

[15]Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 192 ALR 433, 474. In that case, Telstra’s telephone directory was a ‘whole of universe’ compilation because there was no selection of the subscribers to be included.

[16]Copyright Act 1968 (Cth) s 36(1).

[17] J McKeough, A Stewart and P Griffith, Intellectual Property in Australia (3rd ed, 2004), 216.

[18] The Copyright Act provides for fair dealing in a copyright work for the purpose of research or study, criticism or review, reporting news, judicial proceedings, or giving professional advice: Copyright Act 1968 (Cth) ss 40–43.

[19] Ibid s 40(1).

[20] Ibid s 40(2).

[21] Ibid s 40(3). A ‘reasonable portion’ generally means 10% of the work, determined either by page number or, in the case of digital copies, word count: Copyright Act 1968 (Cth) ss 10(2), 10(2A).

[22] Copyright Law Review Committee, Simplification of the Copyright Act 1968 Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998), rec 6.29, 6.35, 6.44.

[23] Ibid.

[24] Copyright Law Review Committee, Copyright and Contract (2002).

[25] Intellectual Property and Competition Review Committee, Review of Intellectual Property Legislation under the Competition Principles Agreement (2000).

[26] Phillips Fox, Digital Agenda Review Report and Recommendations (2004). See Copyright Amendment (Digital Agenda) Act 2000 (Cth).

[27] Australia and United States, Australia–United States Free Trade Agreement, 18 May 2004.