Journal of Law, Information and Science
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YEE FEN LIM[*]
Generally multimedia products do not permit the user to print out the contents. However many of the products incorporate a print function. In this article the author discusses whether the software developers are authorising infringement of copyright.
There are increasingly more and more multimedia products appearing on the market. A large number of these are reference works with high quality visual images, still or moving. A large proportion of these images have been scanned into digital form from a hard copy and thus licences usually have been obtained by the producers of the multimedia works from the copyright holders of the original pictures. However, a licence to use an artistic work in a multimedia production does not give the purchaser of the multimedia software the right to reproduce it by say, printing out a copy of the picture. Most software packages state this and explain the limited rights of the purchaser. However, in spite of the fine print about rights, many software developers still program into their products a "print" function whereby the user can easily send the visual images straight to the printer. Can it be said that such software developers are authorising infringement of copyright within the meaning of the Copyright Act?
The law of copyright gives to owners of copyright a set of exclusive rights to exploit their work (for profit[1]); one such right provided for by s31(1)(a)(i) of the Copyright Act is the right to reproduce the work in material form. Section 13(2) of the Act provides that the right of authorising others to do an act in relation to a copyright in a work is also one of the copyright owner's exclusive rights. Thus, the right to authorise the reproduction of a work in material form is an exclusive right belonging to the copyright owner. Under s36(1) and s101(1), the authorisation of the doing of any act comprised in the copyright of a work or subject-matter, without the licence of the owner, amounts to a direct infringement of the copyright in the work. In University of NSW v Moorhouse[2], the concept of "authorisation" was considered by the High Court of Australia and it was given an expansive interpretation.
Moorhouse, the author of a book that the University of New South Wales's library carried, and Angus and Robertson, the publisher of Moorhouse's book, claimed that the university had authorised the making of infringing reproductions of works, contrary to s 36(1) of the Copyright Act, by allowing students access to photocopying machines installed in the library without exercising control or supervision over what books were copied and how much of any book was copied.
Gibbs J (as he then was) accepted that the word "authorise" has been held judicially to take its dictionary meaning of "sanction, approve, countenance"[3] and that in Adelaide Corp v Australasian Performing Right Assn Ltd[4], 'authorise' and 'permit' seemed to have been regarded as synonymous[5]. His Honour also endorsed the view that a person cannot be said to authorise an infringement of copyright unless that person has some power to prevent it but that express or formal permission or sanction or active conduct indicating approval is not essential to constitute an authorisation[6]; inactivity or indifference may sometimes reach a degree from which authorisation or permission may be inferred. What is necessary however is that the person charged with authorisation at least knows or had reason to suspect that the infringing act might be done. However, a person who makes available to others the means by which an infringement may be committed may be able to negative an inference of authorisation if it can be shown that reasonable steps were taken to limit the use to legitimate purposes.
Jacobs J (in whose judgment McTiernan ACJ agreed) also recognised that the word "authorise" has a wide meaning and is not limited to the authorising of an agent by a principal - "authorisation is wider than authority"[7]. The acts and omissions of the alleged authorizing party must be looked at in the circumstance of each case to determine the inference that is to be drawn from the conduct of the person who is said to have authorized the infringement[8]. Jacobs J thought that the point in issue in this case was whether there was an unlimited invitation to users of the library to use the photocopying facilities as each individual thought fit[9]. It seems that His Honour was suggesting that perhaps if there were relevant qualifications to the invitation, then the university might not have been found to authorise the copyright infringements[10]. This approach is more lenient than Gibbs J's approach which requires the taking of reasonable positive steps to prevent infringing use. However, it is unclear what exactly would have satisfied as a "relevant qualification" but it seems that a mere qualification that the university knew or had reason to believe was ineffective would probably not have sufficed.
On the facts of this case, the university made books available in its library and provided in the library the machines by which copies of those books could be made. Accordingly, the university must have known that it was likely that a person entitled to use the library might make a copy of a substantial part of any of those books. After considering the particular facts, it was found that the university had not satisfied either of the two justices' requirements to negative authorisation. The university had not relevantly qualified its invitation, nor were there adequate or effective measures to ensure that persons making copies of works in which copyright subsisted would do so only in circumstances which amounted to fair dealing for the purpose of research or private study: the notices placed near the coin-operated machines referred to an irrelevant section of the Copyright Act, library guides (which were only distributed to first year students) were misleading in that they claimed that the relevant sections of the Act were available on each machine and uninformative in that they did not indicate the nature of photocopying that was permitted by the law, and the attendants who were present in the photocopying room only looked after the maintenance of the machines. Hence, it was inevitable that the High Court found the university had authorised the infringement of copyright.
As a result of this case, the Copyright Act was amended so that libraries providing photocopying facilities are deemed not to be authorising copyright infringements if notices are placed near the machines alerting the users of the machines to the provisions of the Act. The judgments in Moorhouse however remain good law in Australia[11].
The main case on authorisation in England of recent years is CBS Songs v Amstrad[12] which re-affirmed that "authorise" meant "sanction, approve and countenance"[13]. In that case, Amstrad, the first respondent manufactured twin-deck tape-recording machines which were sold by the second respondents. The machines had a tape to tape recording facility which meant that it was very easy for them to be used to reproduce one tape directly onto another tape and they were advertised in such a manner which was likely to encourage home taping. The advertisements however carried the warning that some copying required permission and made it clear that the first respondent had no authority to grant such permission. The appellants were record companies suing on behalf of themselves and certain copyright owners in the music business. They alleged that the machines had been advertised and had been sold in such a way as to unlawfully incite members of the public to commit an offence under s21(3) of the English Copyright Act[14] which prohibited the making of infringing copies of a copyright work. The House of Lords held that the advertising and sale of the tape recording machines did not authorise breaches of copyright since the advertisements made it clear that the first respondent had no authority to grant the required permission and that the first respondent had no control over the use of the machines once they were sold[15].
The only fully reasoned judgment in Amstrad was that of Lord Templeman's[16]. With respect, His Lordship's reasoning is not entirely consistent nor clear. Templeman LJ implicitly accepts that "authorise" means to "sanction, approve and countenance"[17], a very wide notion of "authorise" but yet His Lordship found that by advertising and selling the twin-deck tape-recording machines, Amstrad did not "sanction, approve or countenance" an infringing use of the machines; they merely facilitated copying in breach of copyright. Although the machines were capable of lawful uses, it was not doubted that the machines would almost inevitably be used for the purposes of infringing copyright. Surely then, by facilitating copying, Amstrad is sanctioning or countenancing infringements of copyright as without the facility to infringe, one cannot do so. His Lordship also referred to Moorhouse and concluded that Amstrad has no control over the use of the machines once they were sold. With respect, this is not entirely within the spirit of the judgments in Moorhouse. Gibbs J in Moorhouse stated that one must have the power to prevent infringement before one can be said to authorise infringement. Amstrad in fact had the power to prevent the infringements as it could have simply made the machines unavailable for sale. Jacobs J in Moorhouse alluded to the possibility that authorisation may be negatived by "relevant qualifications". The House of Lords took this as an invitation to regard any qualification, such as a disclaimer by Amstrad as sufficient. It is submitted that the decision in Amstrad is one based on policy and not necessarily on law. Lord Templeman was aware of the conflict that has arisen between the electronic equipment industry and the entertainment industry. His Lordship acknowledged that each industry is dependent on the other:
Without the public demand for entertainment, the electronic industry would not be able to sell its machines to the public. Without the facilities provided by the electronic equipment industry, the entertainment industry could not provide entertainment in the home, and could not, for example, maintain orchestras which fill the air with 20th century cacophony or make gratifying profit from a recording of a group without a voice singing a song without a tune.[18]
However, there is one area where their interests conflict:
It is in the interests of the electronic equipment industry to put on the market every facility which is likely to induce customers to purchase new machines made by the industry. It is in the interests of the entertainment industry to maintain a monopoly in the reproduction of entertainment. Facilities for recording and reproducing incorporated in machines sold to the public by the electronic equipment industry are capable of being utilised by members of the public to copy the published works of the entertainment industry, thus reducing the public demand for the original works and recordings of the entertainment industry itself...and thus infring[ing] the copyrights of the recording companies...[19]
His Lordship conceded that copyright law could no longer cope with the mass-production techniques and inventions which originally created a market for the works of a copyright owner but which now supplies the means for the copyright owner's rights to be infringed[20]. In substance, Amstrad narrows the notion of "authorise" but in form, the operation of "authorise" remains as wide as it was. The decision in Amstrad strikes a fine balance between the interests of the two industries. Although it was without a doubt that Amstrad facilitated breaches of copyright, banning the sale of the twin-deck tape recorders would have been a retrograde step for the interests of technology; not only would consumers not have reaped the benefits of technological advances but the commercial and monetary implications would have been staggering.
There have only been two significant Australian cases on authorisation of infringement of copyright since Moorhouse, WEA International Inc v Hanimex Corp Ltd[21] and Autodesk v Dyason[22], both of which re-affirmed Moorhouse's wide definition of "authorise". The Hanimex case concerned advertisements for blank cassette tapes that were aired on radio broadcasts. The applicants were the owner and exclusive licensee of the Australian copyright in sound recordings of the pop star Madonna (who was mentioned in the advertisements) and they claimed that the advertisements incited consumers to copy sound recordings onto the blank cassette tapes that were designed for car stereo use and thereby authorised copyright infringements. It was true that the advertisements promoted the virtues of the physical properties of the respondents' product by stressing their ability to withstand the hottest dashboard - "If you don't want your favourite recordings ruined, use Fuji GTI car tapes. The only tape that won't melt, warp, twist or bend - even on the hottest dashboard" and thus the advertisements implicitly encouraged illegal taping. However, there was a major deficiency in the applicants' case in that there was no evidence of a primary breach, that is, no evidence was adduced to prove that unauthorised reproductions were actually made by anyone who heard the advertisement. Hence Hanimex was held not to have authorised infringement. Gummow J did however indicate that the applicants did not have a sufficient element of control over individuals who engaged in "home-taping"[23] for them to be able to be considered as authorisers of copyright infringement. This interpretation of Moorhouse is somewhat more lenient than what it was originally intended; Moorhouse stated the requirement as having the power to prevent breaches of copyright, not the overly broad requirement that the alleged authorisers have broad control over the infringer of copyright.
The other relevant Australian case is that of Autodesk v Dyason[24], a decision of the Full Federal Court of Australia. That case involved the appellant producing and marketing a device (the Auto-Key) which had the same functionality as the respondents' "AutoCAD lock". In essence, the AutoCAD program would only function if the lock was also present on the same computer thereby preventing the use of the program on different computers simultaneously. At first instance[25], Northrop J found that the supply of the Auto-Key device did not "authorise" the reproduction of the AutoCAD program. For there to be an "authorisation" there must be an act of infringement, there was no such primary infringement. Further, the Auto-Key was capable of being used with the AutoCAD program in a non-infringing way as there was no requirement in the contract between the respondents and a licensee of the AutoCAD program that the Hardware lock be used. Northrop J's decision was affirmed by the Full Federal Court[26]. The judgments in the Autodesk Case seem to indicate a willingness to adopt a more lenient approach to the concept of authorisation: the fact that the photocopiers at the University of New South Wales were capable of non-infringing uses did not sway the court to find that there was no authorisation in Moorhouse.
As can be gleaned from the foregoing, the law in Australia with respect to the concept of authorisation is not entirely clear. The control test enunciated in the Hanimex case seems to move away from the harshness of the Moorhouse decision, as does the Amstrad case but both these decisions were commercially sound decisions that took economic considerations into account. In any case, the provision of printing facilities in multimedia works is more akin with the facts of Moorhouse. In Moorhouse, photocopying machines were provided in close vicinity to a vast number of books which amounted to an invitation to infringe copyright. With multimedia works, a huge amount of reference material can be accessed with the press of a button and the print facility is automatically available when the reference material (text or visual images) is displayed on the screen; this would also amount to an invitation to infringe copyright. In Moorhouse, the University of New South Wales could not show that it took reasonable steps to limit the use of the photocopiers to legitimate purposes and thus it could not negative an inference of authorisation. With multimedia works, the very supply of a print facility that can only serve as an infringement tool together with some enlightening fine print in the licence agreement can hardly be considered as a reasonable attempt to limit the uses to legitimate ones; the licence agreement in any case only binds the purchaser, and not every user of the software. Hence, if Moorhouse is applied in its original strict form, it would seem inevitable that software developers which provide print facilities in multimedia reference works and who do not own copyright in the materials incorporated into the multimedia work, would be liable for authorising infringement of copyright in those works.
Scientific and technological advances will always impact on life in a modern society. Technology provides us with the ability to do things which previously could not be done. Laws should remain relevant to protect those rights which gradually become endangered by science. Multimedia, or digital media is a medium with many potentials, positive and negative potentials. It is a medium far superior to any medium before it and at the same time, it is a medium which can most easily wither away the intellectual property rights which have taken decades to be formally recognised. Traditional copyright of works should be highly guarded and should not be undermined by advances of science.
[*] Law Library, University of Sydney
[1] See discussion in McKeough & Stewart, Intellectual Property in Australia (1991) at 95
[2] [1975] HCA 26; (1975) 133 CLR 1
[3] See Falcon v Famous Players Film [1926] 2 KB 474 at 491; Adelaide Corp v Australasian Performing Right Assn Ltd [1928] HCA 10; (1928) 40 CLR 481 at 480, 497
[5] Supra n2 at 12
[6] Ibid
[7] Supra n2 at 20
[8] Supra n2 at 21
[9] Ibid
[10] Supra n2 at 20-23, especially where notices and guides are mentioned as possible but inadequate qualifications
[11] See for example statements made by Gummow J in WEA International Inc v Hanimex Corp Ltd [1987] FCA 379; (1987) 10 IPR 349
[12] [1988] UKHL 15; (1988) 11 IPR 1
[13] Ibid at 11
[14] Copyright Act 1956 (UK)
[15] The case was also argued on other grounds such as it was an incitement to commit a tort or crime
[16] With the other Law Lords concurring.
[17] Supra n12 at 11
[18] Supra n12 at 3
[19] Supra n12 at 3-4
[20] Supra n12 at 17
[21] [1987] FCA 379; (1987) 10 IPR 349
[22] [1990] FCA 469; (1990) 18 IPR 109
[23] Supra n11 at 362
[24] Supra n22
[25] Reported at [1989] FCA 295; (1989) 15 IPR 1
[26] The respondents appealed to the High Court on a different matter and thus the issue of authorisation was not considered at that level.
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