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The Hon Sir Anthony Mason AC KBE[∗]
This paper stresses the importance of maintaining a balance between the rights of authors and the public interest in copyright law. Copyright has always recognised the public interest in the enhancement of learning, culture and science, and, incidentally, the virtue of access to information and the free flow of information. This recognition is, however, in danger of being eroded by an extension of copyright. Such an extension threatens the public interest in access to information and increases the possibility of anti-competitive behaviour.
This paper considers whether extension of copyright is necessary in the face of technological advancement, and concludes that such an extension would be hazardous if the consequence was to lessen the protection of the public interest consideration underlying copyright.
It considers such issues as whether electronic copies for temporary purposes should be considered as copies for copyright purposes, the extension of existing fair dealing provisions and library exceptions to the digital environment and the liability of internet service providers for the copyright infringements of their subscribers and of call centres for infringing copyright in music played to customers while they are on hold.
The paper concludes by referring to some of the guidelines for fair dealing in the electronic environment suggested by the Report of the Joint Systems Committee and Publishers' Association Working Party on Fair Dealing in an Electronic Environment.
A signal achievement of the 1996 WIPO Conference on Copyright was the adoption of the recital in the preamble of the need to maintain a balance between the rights of authors and ‘the larger public interest’, particularly education, research and access to information, as reflected in the Berne Convention. The recognition of the primacy of that public interest, which conforms to the American view of copyright, rather than the European, is important because it undermines the notion that copyright is a legal regime whose principal goal is simply to protect creators and copyright owners and enable them to exploit their rights. It is also important because it re-affirms the essentiality of public interest goals to which the existing fair dealing, library and statutory licence provisions give expression.
The preamble affirms the idea that copyright recognises as the primary public interest the enhancement of learning, culture and science and, what is incidental thereto, the virtue of access to information and the free flow of information.[1] This larger or primary public interest itself calls for adequate encouragement and protection of those who are creators and disseminators of materials which assist these goals in order to achieve a balance. At the same time the preamble negates the idea that public interest considerations are to be subordinated to the interests of authors and, for that matter, publishers.
The primacy of the public interest, in this non-subordinate sense, should be influential in two ways. First, where the scope or breadth of the interests of authors and owners of copyright, including the concept of copyright, are in question, we should be astute to ensure that, in arriving at a balance, the public interest is not subordinated. Secondly, there is a strong argument for saying that the primacy of the public interest exceptions to owners’ rights should not be reduced or put at risk in the absence of a cogent case to the contrary.
Thus, the scope or breadth of copyright might more appropriately reflect the larger public interest if we were to insist upon a higher level of originality or creativity as a condition of the existence of copyright.
In Feist Publications,[2] the alphabetical listing of all telephone subscribers in a certain area was held not to involve the level of originality required for copyright protection, despite the commercial importance of the work and the effort, investment and organisation that went into the work. The element of selection was insufficient to justify the work as an original compilation. The decision is an illustration of the higher level of originality insisted upon by courts in the United States compared with that applied in Europe and the United Kingdom.
On the other hand, in the Magill[3] decision, the European Court of Justice proceeded on the footing that television stations had copyright in the listing of weekly television programs based on information which was confined to those stations. The European Commission had argued that copyright could not subsist in the listings because they were not secret, innovative or related to research—they were simply information.[4] The Court of First Instance rejected that submission. Advocate-General Gulmann, however, considered that the copyright interests thus protected were not substantial,[5] while the European Court of Justice did not discuss the question.
On the other hand, we must not raise the level of originality to the point that compilations based on skill in selection and arrangement are denied protection. It is imperative that appropriate encouragement be given to those who invest in the publication of compilations which are of significant utility, so long as there is a requisite level of skill in selection or arrangement.
Copyright, because it confers monopoly rights, lends itself to the exercise of rights in an anti-competitive way. This aspect of copyright is a matter of concern when the copyright interests protected are not substantial. We know that, in Australia, claims have been made to copyright in meteorological information and telephone directories.[6] The problem with the extension of copyright over those areas is that it enables the owner, as it did in Magill, to exercise rights in anti-competitive ways. The existence of this problem is, I acknowledge, not necessarily an argument for denying copyright in these areas. That is because an alternative and perhaps a more appropriate answer lies in the subjection of the exercise of owners’ rights to the application of competition law. The difficulty with that answer is that competition law regulation is cumbersome and expensive and, accordingly, there is a reluctance, if not an inability, to provide the regulatory agency with adequate funding and resources. Currently, s 51(3) of the Trade Practices Act 1975 (Cth) provides for a limited exception from Part IV of that Act in relation to conditions of licences and assignments in so far as they relate to intellectual property rights. Whether that exception should be maintained is under review.
Article 2 of the 1996 WIPO Copyright Treaty, in conformity with the recognition of the larger public interest, affirms that copyright subsists in expression, not in ideas, procedures, methods of operation or mathematical concepts as such. Nor does copyright subsist in facts or information as such. In this respect, copyright has been fashioned consistently with the common law which has been traditionally averse to the treatment of information, even confidential information, as property. The comment has been made that ‘the common law generally over-uses its concept of property’; the example given is the sale of goods, where the Sale of Goods Act 1979 (UK), having identified the owner, then proceeds to neutralise a number of consequences of this identification.[7]
The common law’s refusal to treat information per se as property is based, as with copyright, on the public interest in the free flow of information. In the words of Traynor J:
creativity thrives upon freedom; men find new implications in old ideas when they range with open minds through open fields. They would ... be stifled in their efforts to create new forms worth protecting, if the common law through which they ranged they were diverted ... by one enclosure after another.[8]
Another commentator has observed that wholesale adoption of the proprietary analysis would result in the commodification of information, the conversion of a common resource into a private good.[9]
There are, of course, cases which hold that certain categories of information, notably confidential information, trade secrets, partnership information, are to be treated as property or as an asset which ‘belongs to’ a person or persons. However, that is because the existence of equitable and other rights, as well as the availability of equitable remedies, endow confidential information with property-like characteristics. Whatever the position may be in other jurisdictions, in Australia we have rejected the notion that confidential information constitutes property per se. Instead it has been accepted that property is not the basis on which protection is given but is simply the effect of that protection.[10]
The recognition that protection of confidential information does not rest on property is significant. The policy that a confidence should not be disclosed has not justified basing the remedy on property when the consequences of that approach could be detrimental to the free flow of information and freedom of communication. The existence of property in information per se could—almost certainly would—lead to a capacity to deny access to information. In the same way, an expansion in the scope of the concept of copyright would create such a capacity in the copyright owner. As, indeed, would a reduction in the public user rights which presently constitute an exception to the rights of the copyright owner.
Because copyright protects expression and confers rights on the copyright owner with respect to his copyright expression, there is the potential for conflict between copyright and freedom of expression, if copyright protection is taken too far. The potential for conflict is greater in jurisdictions where there is an entrenched guarantee of freedom of expression, as there is under the First Amendment of the United States Constitution and art 8 of the European Convention on Human Rights and Fundamental Freedoms, than there is in Australia where the implied freedom is limited to matters of government and politics.[11] The First Amendment prevents the suppression of ideas and information[12] and would inhibit the grant of exclusive rights over them.[13] The existing United States copyright law in its application to literary works reflects a balance between copyright and guaranteed freedom of expression. To confer extended copyright protection in the digital environment might perhaps crystallise the potential for conflict,[14] as it might in the more restricted area where the implied freedom of communication prevails in Australia.
It is necessary to take account also of international obligations which Australia has assumed under art 19 of the Universal Declaration of Human Rights and art 19 of the International Covenant on Civil and Political Rights. These provisions stipulate that everyone has the right to freedom of expression, to seek, receive and impart information and ideas by various means. Neither instrument has been incorporated into Australian law by legislation. Nevertheless, the existence of the obligations imposed on Australia by these provisions may operate as an obstacle to extending copyright protection to the point where it contravenes the two provisions.[15]
It is important that we do not overlook the character of copyright as an incorporeal right. To quote the words of Windeyer J:[16]
It is not a right in an existing physical thing. It is a negative right, as it has been called, a power to prevent the making of a physical thing by copying. (my emphasis)
That view of copyright has obvious consequences for some of the questions which arise when the existing copyright régime is sought to be applied to the electronic environment.
Take, for example, the claim that browsing on a computer screen involves the copying of the material into the random access memory of the computer, even if only for temporary purpose. The fact that no physical thing is made would not give rise to a violation of the negative right or the power of prevention of which Windeyer J spoke. It would, of course, be different if use went beyond browsing to downloading a copy of the material if copyright subsisted in it. And the introduction of the new transmission right gives a new dimension to the concept of copyright as Windeyer J explained it.
The question whether the transient copying of copyright material into the random access memory (RAM) of a computer is an infringement of copyright has been much discussed both before and after the 1996 WIPO Copyright Conference. The Conference declined to resolve the question and confined itself to the majority approved statement recording that:
the storage of a protected work in digital form in an electronic medium constitutes a reproduction in digital form within the meaning of Article 9 of the Berne Convention.
In the United States, the loading of copyright software into RAM for the purpose of viewing system error and diagnosing problems with the computer was held to be a copying for copyright purposes, although when the computer is turned off the copy of the program recorded in RAM is lost.[17] Because the representation in RAM was sufficiently permanent or stable to be perceived or reproduced for more than a transitory duration, it was ‘fixed’ within the meaning of USC s 101. By that provision a work is ‘fixed’ when its embodiment in a copy, by or under the authority of the author, is ‘sufficiently stable or permanent to be perceived, reproduced or otherwise communicated for a period of more than transitory duration.’
On this reasoning a temporary copy on hard disk would also be a copy.[18]
That decision was, of course, a decision on the particular provisions of the United States legislation. It may be that the majority-approved statement at the 1996 WIPO Conference was influenced by the United States law. The problem is, however, that the majority approved statement does not address the question of ephemeral or incidental copyright. The traditional notion, explained by Windeyer J, that infringement of copyright consists of the making of a physical thing by copying, contemplates a copying that is permanent rather than transitory or ephemeral; moreover, the traditional notion may be said to exclude a copying that is merely incidental to some other legitimate or permissible use of the copyright material.
In conformity with that view of copyright, the WIPO Guide to the Berne Convention pointed out that the reason why art 3(3) of that Convention provided that certain acts do not constitute publication is that these acts, including communication to the public:
produce only a fleeting impression of the work, whereas publication involves the distribution of material things.
As the Commonwealth Government Discussion Paper[19] notes, the WIPO Guide states:
For a work to be published there must exist something tangible embodying it, as is clear from the mention in this paragraph ... of the means of manufacture of the copies, and these tangible things must, in principle, be something one can hold in one’s hand.[20]
However, whether browsing material on a computer screen is reproduction is not the critical issue. The critical issue is whether it should be. It must be acknowledged that there are uses to which the World Wide Web and on-line networks can be put which might involve significant exploitation of copyright material without the permission of the copyright owner. Copyright owners have the problem of detecting unauthorised reproductions and consequential enforcement, a problem which may well be greater in the digital, than in the print, environment. On the other hand, it would be a retrograde step to reduce the opportunity for browsing, a vital element in the advancement of learning and scholarship, simply to meet a difficulty experienced by copyright owners in detection of infringement and consequential enforcement and at the cost of a cumbersome system requiring the obtaining of consent.
The Discussion Paper proposes that temporary reproductions made in the course of the technical process of electronic transmissions should be excluded from the scope of the reproduction right of the copyright owner.[21] As the Discussion Paper notes, the extension of the copyright owner’s reproduction right to cover temporary and incidental reproductions made in the course of transmission would tilt the balance too far against the public interest.[22] It would also result in widespread contravention. An exception for browsing, unaccompanied by other acts amounting to ‘publication’, is the electronic equivalent of a search in the shelves of a traditional library. It is an activity which is essential to study, research and preparation for teaching as well as to learning generally, and as such is supported by universities, teaching institutions and libraries.
The Discussion Paper makes the point that the proposed exception, in favour of temporary and incidental copying in the course of a transmission will not hinder the rights of the copyright owner in the on-line environment. The proposed scheme provides the owner with new rights over the primary action of transmitting or making available copyright material on-line to the public. The exception in relation to temporary copies extends only to temporary copies made in the course of transmission to the public. So it does not apply to downloading.[23] Browsing in the sense of viewing material on screen is not an exercise of the right of making available to the public and the copy made in RAM would fall within the exception for incidental copies.[24]
For the sake of clarity and for more abundant caution, it would be appropriate to provide that browsing, along with the fair dealing and library exceptions, are exceptions from the right of making available, as well as the reproduction and transmission rights. Because the browser causes a transmission to be made into RAM, it is particularly important that browsing be deemed not to be an infringement of the transmission or the reproduction right.
The public interest considerations underlying copyright strongly support the application of the existing fair dealing provisions to the digital environment, subject to such simplifications as may be achieved. Again, this broad approach is supported by universities, teaching institutions and libraries. In this respect, there is much to be said for the adoption of the United States fair use approach in s 107 of the Copyright Act (US), while at the same time, where possible, incorporating our specific legitimate uses as permitted exemplifications within a general fair dealing or use framework.
The existing quantitative test in s 40(3) has been criticised on various grounds, one being that it is insufficiently certain; the reference to ‘reasonable portion’ is identified as an example of that uncertainty.[25] It is not possible in this area of the law to generate the entire degree of precision or certainty that both copyright owners and users would prefer. Rigid rules which might yield satisfactory results in some cases would yield unsatisfactory results in other cases in view of the variety of the materials which are subject to fair dealing. That is why in part of this area it is, in the ultimate analysis, necessary to adopt fairly broad standards, such as fair dealing, and leave their application to the courts.
There is a particular problem in crafting suitable standards for digital publications which have not been published in print and do not conform to the format of a book or periodical publication. If there has been print publication or the digital publication follows print format, there is no problem. If not, I would think that suitable standards can be devised when the dimensions of the problem are fully ascertained. It should be possible to translate word or other limits into an equivalence of some kind, having regard to the nature of the transmission. Even if the unit of a digital publication proves difficult to identify in some cases, a limit framed as a percentage of words could be stipulated for those cases. And, in the last resort, the fair dealing provisions in s 40 can be applied.
The Report of the Joint Information Systems Committee and Publishers Association Working Party on Fair Dealing in an Electronic Environment in the United Kingdom is of some significance because it came down in favour of applying the print limits to digital publications. I shall refer to it later. The application of the relevant print fair dealing provisions to the digital environment might be made subject to a power to make different provisions by regulation should such a different provision become appropriate.
The adoption of a fair dealing régime to the digital environment accords with art 10 of the 1996 WIPO Copyright Treaty. The recorded understanding which was the basis of art 10 stated that the article’s provisions
permit the Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention ... these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate to the digital environment.
The adoption of such a régime, whether or not subject to the existing or a modified quantitative test, would ensure continuity and the relevance of the existing body of case law as well as the judicial case-by-case approach. Such an approach not only has advantages but is also unavoidable. Not that I wish to exaggerate the advantages—the existing Australian heritage of case law is not all that extensive, though the adoption of the American approach will attract the American case law which is much more significant. On the other hand, the case-by-case approach may not be quite as advantageous to users as it is to copyright owners who are perhaps better equipped financially to undertake expensive litigation in the courts. But the case-by-case approach is inevitable in applying broad standards. It will bring into existence ultimately a comprehensive body of authority. The case-by-case approach is inevitable and also desirable in regulating an area of activity that is developing with consequences that are not clearly predictable.
One question which arises is whether the existing exception in favour of ‘research or study’[26] should be qualified by confining ‘study’ to ‘private study’ in order to exclude study for commercial exploitation. The distinction between study and private study is by no means clear cut and the suggested alteration might achieve little as ‘research’ would remain unqualified. It is in any event doubtful whether a use for purely or clearly commercial purposes falls within the designation ‘study’; it may be that the word should be interpreted in the light of the concept of ‘fair dealing’. Recent decisions in Australia and New Zealand indicate that the exception does not protect copying for supply to others for commercial profit.[27]
The public interest considerations supporting the library exceptions in ss 49 and 50 of the Copyright Act 1968 (Cth) are similar to those already discussed. The application of these exceptions to the digital environment is again supported by universities, teaching institutions and libraries. Traditionally, libraries have performed an important function in disseminating and making available knowledge and information, particularly to those in the community who do not have the means of access to other institutions or sources of learning. Libraries make a vital contribution to life-long learning. There is nothing to suggest that they will not perform those functions in the future. One means by which libraries perform those functions is by the document-supply service which involves facsimile and email transmissions. In order to enable these transmissions to continue to be made, ss 49 and 50 require amendment, in conformity with the recommendation No 2.47 of the Copyright Law Review Committee’s report Computer Software Protection. That recommendation is that the sections be amended to enable libraries to make electronic copies, including electronic transmission of a copy stored in digital form, available to users within the limits now applicable to the making of hard copies. The recommendation, if implemented, would be an exception to the transmission right. The recommendation can be implemented quite simply.
Reductions in library budget in real terms, accompanied by the much higher cost of publications and subscriptions, particularly overseas publications and subscriptions, have resulted in cut-backs to collections and subscriptions with emphasis given to regional and national availability. Hence the importance of the system of inter-library loans of which electronic delivery is an important element.
The proposals do no more than replicate in the digital environment the existing public protection. ‘The rights to read, view, listen to, browse, lend, borrow or quote short extracts from copyright materials must not be transferred to the owner of copyright’.[28]
Much is made of the rapidity and scale of change that confronts the world of learning, even to the point of suggesting that universities and, especially, libraries are to be transformed into different institutions with different functions, including the retailing and delivery of commercial services. As things stand that is sheer speculation. No doubt changes will occur. Government has effectively reduced its funding of universities and libraries and at the same time seems to expect users to pay for educational services received. This will ultimately have an effect on universities and libraries—just what the effect will be we cannot presently predict with any degree of certainty. There is, as yet, no reliable evidence to indicate that universities and libraries and, for that matter, teaching institutions, will definitely undergo a radical change of function. The notion that the public will resort to libraries to read a book on screen rather than buy a book is quite fanciful and is not supported by library experience. Recent statistics show a fall in the number of visitors to the National Library in Canberra and in the amount of photocopying undertaken by them. Likewise, the idea that students would subscribe to journals if the fair dealing and library exceptions did not exist is equally fanciful. The exceptionally high cost of journal subscriptions is a notorious and insurmountable barrier to student subscription. Nor for that matter is there any cogent evidence to indicate that the public interest will be better served by denying the application of protection to users in the digital environment in the areas discussed and, as a consequence, exposing libraries, universities and ultimately government to substantially increased copyright charges.
In this situation, it is vitally important that the present balance between public interest and owners’ interests be maintained in the digital environment unless and until it is clearly established that the balance is skewed in some way or other. In that respect, we should await developments and ascertain whether they bring any significant change in the role of those institutions which are concerned with the dissemination of learning, knowledge and information.
In short, in a world in which change is taking place with consequences that remain to be established, it would be hazardous, if not irresponsible, to introduce legislative changes which on their face lessen the protection of the public-interest considerations underlying copyright. It would be otherwise if the evidence persuasively pointed to other means of serving the public interest adequately. But the evidence falls far short of that.
One point I should make about libraries is that major libraries are well aware of copyright responsibilities and that some of the apprehensions expressed about libraries facilitating infringement of copyright are grossly exaggerated. At the same time, I would not deny that there is scope for improving university understanding of those responsibilities. Greater efforts should be made to alert students to copyright requirements.
One possibility that cannot be discounted is that copyright owners by means of contract, encryption and other techniques will refuse to make digital material available, or only make it available on unacceptable terms. In circumstances where the public interest requires it, an obligation should be imposed upon the owner to make the material available by compulsory licence on acceptable terms, if need be on the terms determined by the Copyright Tribunal.
Libraries and universities have an indirect or oblique interest in supporting the view that internet service providers should not be liable for the actions of their subscribers. It should be enough to require internet service providers to give their subscribers a notice similar to that provided for by s 39A of the Copyright Act . The Discussion Paper examines the liability of service providers in the context of the law of authorisation and the law in dealing with the interpretation of ‘authorisation’.[29] The authors then propose that service providers that are aware of the likelihood of infringing acts occurring on services provided by them and fail to take reasonable measures to avoid such infringements, could be liable for authorising an act of copyright infringement. The examples of infringement given include downloading copies of copyright material such as computer software or articles from publicly accessible web sites.
There are some uncertainties in this approach, both in terms of awareness of likelihood of infringement and failure to take reasonable steps. On the other hand, I think that there is force in the point made by the authors that, in the rapidly changing world of the Internet, it would be premature and a mistake to ‘freeze’ the law by providing for an exception from liability when the exception might be superseded by subsequent developments. As far as libraries are concerned, care should be taken to avoid imposing an obligation on libraries to ‘prevent’—even to take ‘reasonable care to prevent’—an infringement. It is one thing to have a responsibility not to facilitate; it is another thing not to prevent.
The decision not to define the term ‘public’ has all the virtue of necessity. In Telstra v APRA,[30] the High Court held unanimously that the use of the words ‘to the public’ in s 10 of the Copyright Act conveys a broader concept than in s 31(1)(a)(iii) of the Act and that it is irrelevant where the communication occurs as there can be a communication to individual members of the public in a private or domestic setting which is a communication to the public. In determining whether a communication is of that kind, the nature of the audience (in that case of those who receive music on hold) is important. Behind the concept of the copyright owner’s public is recognition of the fact that where a work is performed in a commercial setting, the occasion is unlikely to be private or domestic and the audience is more appropriately seen as a section of the public. The Court held that callers on hold constitute the copyright owner’s public because others are prepared to pay the cost of them hearing the music. For the performance of the music to that audience, the copyright owner would expect to receive payment. Although I have some difficulty with the concept of the copyright owner’s public there is no reason to doubt the correctness of the decision in Telstra v APRA.
The guidelines agreed by this Working Party consisting of representatives of universities and publishers are significant. They include the following:
• Any incidental copying to disk in viewing part or all of an electronic publication should be considered fair dealing. Incidental copying for the purpose of viewing, where there is no intent to store the copy permanently, should be considered fair dealing.
• It should be fair dealing for an individual to print onto paper one copy of part of an electronic publication.
• It should be fair dealing for a librarian to print onto paper one copy of part of an electronic publication at the request of an individual.
• It should be fair dealing for an individual to copy onto disk part of an electronic publication for permanent electronic storage where the disk is either a portable medium or fixed medium accessible to only one user at a time.
• Likewise for a librarian to make such a copy at the request of an individual where the disk is a portable medium.
• It is not fair dealing for an individual or a librarian to copy on to disk all of an electronic publication for permanent local electronic storage.
• It should be fair dealing for a librarian to transmit by computer network part but not the whole of an electronic publication for the purpose of printing a single copy with only such interim electronic storage as is required to facilitate that printing.
• It should be fair dealing for a librarian to transmit by computer network to an individual at their request part of an electronic publication for permanent local electronic storage, but not transmission.
The guidelines included the following definitions:
• ‘electronic publication’ includes both publications created specifically in electronic format, and publications originally created in paper format and then later transferred to electronic format under conditions of conformity with copyright law.
• ‘part of an electronic publication’—the Working Party considered that the existing library privileges model for determining ‘part of’ a paper publication, ie one article from a journal issue, one chapter from a book, or 10% of other works, should be used, with the proviso that this might require revision if there were significant changes in existing publication practice, eg where an issue of an e-journal comprised one article, or where the journal or book format no longer applied.
The possibility of such change required that the issue should be kept under review.
These guidelines illustrate what the publishers’ representatives on the Working Party in the United Kingdom were willing to accept.
On the other hand, the Working Group made it clear that the guidelines were subject to the following qualifications:
• The purpose of copying may not be for commercial exploitation, direct or indirect.
• Only single copies are permitted.
• The making of subsequent copies from the single permitted copy is not permitted.
As in the United Kingdom, in various jurisdictions dialogue is taking place between owners and users. In Australia the Gilgandra Group or group consisting of representatives of owners and users, is exploring the possibility of trial projects. In the United Kingdom, a Joint Working Party of the Joint Information Systems Committee, established by the four higher education funding councils and the Publishers Committee, has put forward a ‘model licence’ for the use of electronic material. In Scotland, SCOPE, a consortium of Scottish higher education institutions is developing ‘electronic course packs’ for delivery on-line to students which are copyright cleared through licence agreements with publishers. Ultimately, worthwhile advances may well be achieved through co-operative dialogue between owners and users. There is much to be gained from setting up relevant pilot programs. That will assist in breaking down the present stand-off and may help to prove or disprove the accuracy of the tribal claims made by the warring parties.
[∗] Chancellor, The University of New South Wales, National Fellow, Research School of Social Sciences, Australian National University. This paper was presented at the Copyright and the Public Domain seminar held by Griffith University on 13 February 1998.
[1] Feist Publications Inc v Rural Telephone Services [1991] USSC 50; (1991) 499 US 340 at 349, per O’Connor J; (‘the primary objective of copyright is not to reward the labour of authors; it is to promote the progress of science and the useful arts’).
[2] Feist Publications Inc v Rural Telephone Services [1991] USSC 50; (1991) 499 US 340 at 349.
[3] Radio Telefis Eireann v European Commission [1995] EUECJ C-241/91P; (1995) 4 CMLR 718.
[4] ibid at 757.
[5] ibid at 730.
[6] Australian Submission No. 1 to OECD Competition Law and Policy Committee, Roundtable on Intellectual Property Rights, ‘The Breadth of Intellectual Property Rights and their Interface with Competition Law and Policy’.
[7] N. Palmer and P. Kohler, ‘Information as Property’ in eds N. Palmer and E. McKendrick, Interests in Goods, Ch 1, 2nd edn, 1998 (forthcoming).
[8] Stanley v Columbia Broadcasting System Inc (1950) Cal 2d 653 at 673 (dissenting).
[9] Zimmerman, ‘Information as speech, Information as goods’ (1992) 33 W&MLR 665.
[10] Smith Kline & French Laboratories v Secretary, Department of Community Services and Health [1989] FCA 384; (1990) 22 FCR 73 at 121; affd [1991] FCA 150; (1991) 28 FCR 291; Breen v Williams (1996) 186 CLR 71 at 90.
[11] Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 145 ALR 96.
[12] Harper & Row Publishers Inc v Nation Enterprises [1985] USSC 128; (1984) 471 US 539.
[13] Lee v Runge (1971) 404 US 887.
[14] Nimmer, ‘Does Copyright Protection Abridge the First Amendment Guarantees of Free Speech and Free Press?’ (1970) UCLA Law Review 1180.
[15] P. Brudenall, ‘Fair Dealing in Australian Copyright Law: Rights of Access under the Microscope’ [1997] UNSWLawJl 33; (1997) 20 UNSW Law Journal 443 at 462.
[16] Pacific Film Laboratories Pty Ltd v Federal Commissioner of Taxation [1970] HCA 36; (1970) 121 CLR 154 at 169.
[17] Mai Systems Corporation v Peak Computer Inc [1993] USCA9 1079; (1993) 991 F 2d 511; see also Apple Computer Inc v Formula International Inc (1984) F Supp 617 at 621.
[18] Professor I. Trotter Hardy, ‘Computer RAM ‘Copies’: Hit or Myth?’, Paper delivered on 17 February 1997, p. 8.
[19] Copyright Reform and the Digital Agenda’, July 1997.
[20] WIPO Guide p. 28.
[21] Discussion Paper, pars 3.35 to 3.43, 4.55.
[22] par 4.56.
[23] pars 4.55 to 4.58.
[24] par 4.61.
[25] Note, in particular, that the concept ‘reasonable portion’ may not be reasonable when applied to digital works where the unit of sale is not a book or periodical publication.
[26] ss. 40, 103C.
[27] De Garis v Neville Jeffress Pidler Pty Ltd [1990] FCA 352; (1990) 18 IPR 292; Television New Zealand Ltd v Newsmonitor Services Ltd (1994) 27 IPR 441.
[28] ACLIS submission in response to Copyright Reform and the Digital Agenda, p. 9.
[29] pars 4.69 to 4.79.
[30] [1997] HCA 41; (1997) 146 ALR 649.
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