Copyright, Communication and New Technologies

COPYRIGHT, COMMUNICATION AND NEW TECHNOLOGIES William A van Caenegem*

INTRODUCTION The Copyright Law Review Committee l (CLRC) is to report in the near future on the desirability of major changes to the Copyright Act, with particular reference to the exclusive rights of the copyright owner. The Copyright Convergence Grouf (CCG) has already recommended significant amendments of a more limited scope. Behind the interest in law reform lies the impact of the "digital revolution", permitting the production, storage, distribution and use of copyright matter in digital machinereadable form. Underlying the CLRC review is the belief that the rights and rewards of the copyright owner must be safeguarded from this new technological threat, primarily through the bestowal of broader rights. A further concern is that the Copyright Act has achieved a muddled complexity which only a clean sweep can now remedy, and that it cannot sustain any more incremental amendments. Thus the present Reference proposes a radical solution, the replacement of the specific enumerated rights with two broad rights of distribution and transmission. Such a major review is an opportunity to reflect on the basic policy aims, concepts and principles of copyright law, and to reformulate them in the light of contemporary conditions, notably contemporary technology. While it is true that the Copyright Act is complex, particularistic, wide-ranging and much amended, the review remains an essential enterprise. But in considering the goals of this undertaking, it is essential to recognise that the Copyright Act represents a statutory balance between the rights of authors or copyright owners and the rights of users. Copyright law must be

1

2

Assistant Professor of Law, Bond University. I wish to thank Peter Drahos of the Faculty of Law at the Australian National University and Michiel Elst of the Faculty of Law at the Catholic University of Brussels for their helpful remarks about an earlier draft of this article, and Professors Dennis Pearce and Tom Campbell for their comments. All viewpoints expressed in this article remain my own. I would also like to thank the Copyright Agency Limited and the Faculty of Law at the ANU for their generous support in the form of the CALI AND Copyright Fellowship which allowed me to complete this article. Copyright Law Review Commission (CLRC), Terms of Reference on the Review and Simplification of the Copyright Act, February 1995 (Minister for Justice, The Honourable D Kerr MP). Copyright Convergence Group (CCG), Highways to Change: Copyright in the New Technological Environment, August 1994.

1995

Copyright, Communication and New Technologies

323

reformulated in a manner which takes account of both sets of rights. Those rights are not, however, necessarily incompatible or diametrically opposed. That said, this article does not presume to give a comprehensive review of rationales for copyright law. Rather, I will emphasise that the nature and potential of digital technology bring some policy issues sharply into focus. Primary amongst these issues is the fact that one of the Copyright Act's principal aims is to promote the distribution of knowledge and information, for the benefit of society as a whole. As a consequence, copyright law must, in legal terms, be seen as constrained by the demands of a "freedom of communication". FrOIll this perspective, at a time of unprecedented developments in the market for information, copyright law presents both potential threats and potential benefits which must be carefully considered. Further, emerging digital technologies throw new light on the nature of authorship, originality and imitation. A full understanding of these concepts requires an appreciation of the contribution copyright makes on the one hand to the general welfare of society, and on the other hand to the individual welfare of the author. First, I will examine the interrelationship between copyright law and freedom of communication, both within the closed doctrinal system of copyright law and from the external viewpoint of a right or freedom of communication. Then I will consider digitisation and the future of copyright law, and will end with an attempt to draw some conclusions. 3

COPYRIGHT, COMMUNICATION AND DIGITISATION Whatever the terminology used, or the doctrinal structure observed, there can be little doubt that maximisation of the availability of knowledge and information will have functional benefits for society: the advantages of the unrestricted exchange of information and knowledge for scientific,4 political and social development have been well canvassed. Furthermore, free communication as such is beneficial in various ways. The exchange of knowledge is essential to individual human development, either as a form of self-exfression and personal fulfilment, or because it allows the pursuit of objective truth. On either view, a limitation on conununication which is not warranted by some clear and special purpose is to be avoided; in legal terms, constitutional 3 4

5

Digitisation is the translation of copyright works or other subject-matter from analogue, human-readable form to digital, machine-readable form. For some discussions of the relationship between scientific development, communications and intellectual property laws, see eg, R S Eisenberg, "Proprietary Rights and the Norms of Science in Biotechnology and Research" (1988) 97 Yale LJ 2 177; R J Kelly, "Private Data and Public Knowledge: Intellectual Property Rights in Science" 1989 13 Legal Studies Forum 365; JV Vilanilam, Science, Communication and Development (1993); also F Rushing, C Ganz Brown (eds), Intellectual Property Rights in Science, Technology, and Economic Performance: International Comparisons (1990). For a comprehensive analysis of some of the issues involved in the relationship between intellectual property and communication, see P Drahos, "Decentering Communication: the Dark Side of Intellectual Property" in T Campbell and W Sadurski (eds), Freedom of Communication (1994) 314. Note T Campbell, "Rationales for Freedom of Communication" in T Campbell and W Sadurski, above n 4, 17. For a post-modernist view, see R J Coombe, "Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue" (1991) 69 Texas LR 1853. See also T I Emerson, "Toward a General Theory of the First Amendment" (1963) 72 Yale LJ 877.

324

Federal Law Review

Volume 23

guarantees in many jurisdictions, as well as ordinary legislation, reflect the over-riding importance attached to freedom of communication, in whatever precise terms it may be expressed. Copyright law constitutes a limitation on communication because it grants an author exclusive rights over original works and subject-matter, and prohibits forms of expression which amount to an infringement of those exclusive rights. The law constrains the uses which others may make of knowledge and information contained in copyright works, it restricts imitation and limits forms of expression, and thus affects freedom of communication. The law may also have an indirect effect, in that quasi-monopoly rights such as copyright may lend themselves to accumulation and manipulation of rights to achieve ends ~hich restrict the freedom of communication. The scope or extent of copyright rights is thus an area of conflict both between public and private interests, and between different private interests. Such conflicts may be resolved by subordinating the private benefit - the private monopoly and potential for reward - to the public benefit of free communication. 6 Such a solution reflects a grant-based and functional view of the basis of copyright law: the private right or benefit is granted to make the public benefit obtainable. In other words, the best way to maximise the circulation of knowledge and information is by encouraging their production and dissemination by the grant of a private right as an incentive. However, when one speaks in terms of rights, copyright law may equally be seen as enhancing freedom of communication because it strengthens and protects the author's right of expression. This approach tends more towards a rights-based philosophy of copyright, as a contest between an inherent private right, the right to own the emanations of one's own creative spirit (a personality right in civilian terms), and a public interest in the widest possible dissemination of knowledge and information; the two must then be reconciled. The contrast between common law and civil law jurisdictions7 reflects the contrast between a rights-based and a grant-based view of copyright. However, the contrast is more apparent than real: in the result, if the issue is communication, the balancing act remains the same whatever one's preferred approach, with only a difference in emphasis. In any case, as an apparent limitation on freedom of expression or communication, copyright law should be subjected to careful scrutiny.8 The implications for copyright 6

7

8

In economic terms, the failure of the market to produce sufficient intellectual goods is remedied by the grant of monopoly property rights. See the economic analysis of copyright law in R A Posner and W M Landes, "An Economic Analysis of Copyright Law" (1989) 18 Journal of Legal Studies 325. But within the common law tradition, the question whether copyright is a common law right or a statutory right in origin is sometimes still canvassed, although the issue was effectively laid to rest in the early case of Donaldson v Beckett (1744) 4 Burr 2408; 1 ER 837, where the House of Lords found against a perpetual common law copyright in published works. Although generally accepted, whether this was truly what the House held is sometimes still contested; see eg, F D Prager, "A History of Intellectual Property Law from 1545 to 1787" (1944) 26 JPTO 712. See also the detailed analysis in L R Patterson, Copyright in Historical Perspective (1968) at 158, where he points out that the court's preoccupation in Donaldson was with publishing and printing rights rather than with copyright as a whole. The other early leading case concerning the nature of copyright is Millar v Taylor (1769) 4 Burr 2303; 98 ER 201. In the United States, see Wheaton v Peters 33 US (8 Pet) 591 (1834). In the sense that pre-emptive rights and freedoms operate to give more than ordinary weight to some interests in the normal balancing of interests that is the law, which may

1995


325

law of the "digital revolution" from this point of view are the particular concern of this article. Digital creation or "translation", storage and distribution (via cable or wireless means) enable the exploitation of copyright works without making multiple hard copies. This is because a user, that is, someone who is interested in accessing facts and ideas contained in a copyright work, can access and read a single copy of the work or a few centrally stored copies. 9 Traditional reliance on the reproduction and distribution of multiple copies of copyright works to generate income will be at least partly usurped. IO The "Information Superhighway"(whatever form it may take) revolution will make this kind of (interactive) access to copyright works increasingly common. The benefits of such a system are clear: savings in cost of production, speed and ease of access, flexibility and enhanced research capacity. However, if uncompensated, this form of access would leave a copyright owner with possibly inadequate rewards, and the balance between risk and incentive will be disturbed to a degree which will result in less than optimal production of copyright works. 11 This is potentially a problem so fundamental that it cannot simply be left to be resolved by market-based contractual relationships: statute law must be adapted in a manner which structurally ensures an adequate level of private incentive and reward. But in this endeavour, the basic policy aims of copyright law must not be neglected; whilst rewards should indeed be adequate to optimise production of copyright works, optimisation in itself serves wider aims, including free communication as set out above. It is thus free communication, free interchange which is essential, not just free expression. The crucial point in the context of copyright law's response to digitisation is that whilst freedom of communication is meaningless without access - it is of no use to a speaker (or in the present context, an author) to be free to speak but have no audience - the natural effect of digitisation may be a tendency to restrict access to copyright matter. Furthermore, a freedom of access is itself meaningless if the use which may be made of the material accessed is too heavily restricted: if the speaker needs an audience, the audience also needs to be able to make use of what the speaker says, even if only to respond to that speaker. In terms of authorship and creation, this means a freedom to copy, to use, to imitate; since imitation is a mainstay of most

9

10

11

lead to express consideration of freedom of communication arguments in the law reform debate but also in infringement cases. A telling example is that of parody, where a whole work may sometimes be reproduced literally but contextualised so as to be clearly for the purpose of criticism of the author's ideas. It is of course true that reproduction or the making of copies is not the only way in which a copyright owner earns an income from copyright works: other sources include public performance, either direct or through mechanical means, eg, sound recordings or cinefilms. Some kinds of works or subject-matter are of course more acutely affected than others, eg, the copyright in artistic works may be less affected than that in literary works, since artistic works are often to a degree dependent on a specific environment. W M Posner and R A Landes, above n 6; to some extent their article is concerned with the economics of imitation. The authors inter alia refer to the fact that borrowing from existing works limits the cost of expression, and excessive protection levels would therefore have a negative impact on the production levels of new works. One might add that when all works are either copyrighted or out of date, there is a clear incentive to create new works which does not necessarily exist in the absence of copyright law. Further, as a matter of practicality, popular fiction requires easy access to stock figures, expressions and formats to satisfy demand: look at everyday soaps for instance!

326

Federal Law Review

Volume 23

creation of copyright works, and plays a vital role in artistic and scientific development. 12 But to fulfil these functions, copyright law must maintain broad rights of access in a manner compatible with the rights of the author. In economic terms, if the right to imitate is too severely restricted, the cost of production of copyright works will rise to such an extent that there will be sub-optimal levels of production of new copyright matter; but, on the other hand, as the market for intellectual goods is imperfect, property rights are required to provide sufficient incentive for the production of such goods. 13 In the following sections, before further analysing these issues in the context of digital technology, I will examine how the law has traditionally achieved the twin goals of access and incentive. One way this has been done is through the structure of copyright law itself; another is through the application of the basic principle of "idea expression dichotomy". I start with these internal limitations on the rights of copyright owners, before moving on to external limitations in the nature of constitutional or general legal rights or freedoms.

INTERNAL LIMITATIONS ON COPYRIGHT The structure of statutory rights Copyright is sometimes referred to as a monopoly but this is largely a misnomer: copyright only provides anti-copying rights, and does not affect (at least in theory) independent creation. The rights of the copyright owner are precisely circumscribed and enumerated, rather than constituting a general exploitation right, and they are limited in time. Thus although the rights are exclusive, they are not truly "monopolistic". The Copyright Act does define copyright as personal property, but this characterisation is more a statutory technique that renders copyright a tradeable commodity to which a degree of certainty attaches, a focus of a bundle of specific rights adapted to a market economy.14 Another difficulty in describing copyright as a property right in the theoretical sense is that the protection of copyright ceases at the expiry of the statutory term (usually 50 years after the death of the author); property rights are not normally limited in time. Furthermore, whereas traditional corporeal property rights are not granted to serve one specific functional purpose,IS copyright protection serves a limited objective, that is, to secure returns for creative work to an 12

13

14 IS

Eg, B Kaplan, An Unhurried View of Copyright (1967). He quotes Voltaire (at 78): "[Plagiarism] est assurement de tous les larcins Ie moins dangereux pour la societe", from Dictionnaire Philosophique, Plagiat, in 42 Oeuvres completes de Voltaire 321 (1784). Note also the fact that authorship during the Renaissance was considered more a question of careful imitation of the ancient texts than was original creation. See W M Posner and R A Landes, above n 6. The market for intellectual goods is imperfect because of free riding (ie the ability of competitors to avoid the costs of production of intellectual goods, but capture the competitive benefits, by copying and imitation), the marginal cost of production and the inability to capture benefits (ie intellectual goods are by nature social goods and inexhaustible). Appropriately balanced intellectual property laws must be relied on to correct market behaviour and to provide adequate levels of intellectual goods to the market. I use the term property or property rights in the theoretical sense of absolute proto-legal and inherent rights recognised and limited by the law. In theory, incentives could be provided by direct rewards rather than by providing intellectual property rights. For instance, in the erstwhile Soviet Union, the granting of an inventor's certificate entitled the inventor to a monetary reward but not to exclusive rights.

1995


327

author. This is not the place to fully review the debate as to whether copyright is property or not, but the essential point is that both the terms "monopoly" and "property" used in relation to copyrights imply far more than the actual statutory structure of rights allows. Further, the rights bestowed by copyright law are limited to form, not contents: no exclusive rights attach to the information, facts, ideas, theories or methods, as such, which may be expressed in a copyright work. Copyright law protects rights "about" information and not "to" information. The exclusive rights are to perform certain acts with respect to the material form in which the information is expressed. These structural limitations are clearly evident when copyright law is contrasted to patents law, which grants exclusive rights to exploit ideas. A patentee thus enjoys rights over contents rather than over form. Furthermore, the rights which copyright does bestow are expressed in terms of specific technologies, such as printing or broadcasting, and in terms of specific techniques, for example, performance in public or adaptation. They are further limited by a host of exceptions and statutory licences, some of which directly reflect the dedication of copyright to the growth and spread of knowledge and learning: examples of these include the fair dealing exceptions and the compulsory licences for certain educational uses and for the purpose of public debate. f6 Thus authors' rights are clearly subject to considerable structural limitations, and copyright law by no means protects a "monopoly over information". Doctrine and principle The rights of the copyright owner are not only circumscribed in statutory terms but are also limited by the doctrines and principles which the courts apply in resolving copyright disputes. One of the most fundamental is the idealexpression doctrine, which states that copyright extends over the expression of ideas in a certain form only, and not over the underlying ideas as such. Alternatively or cumulatively one might refer to a facti expression distinction: the rights of the copyright owner extend to the manner in which facts are expressed, not to those facts themselves.t 7 Where there is literal copying there is usually less doubt about what is impugnable and what is not, although a finding of infringement may still depend on the amount and the circumstances of the taking. But the dichotomy is of particular importance where the question is one of imitation or non-literal copying: the idealexpression dichotomy helps to define what may be taken and what may not, since detailed guidance within the Copyright Act itself is largely lacking. In spite of a long history of judicial development and many decided cases18, drawing a line between idea and expression is 16

17

18

However, it cannot be argued that simply because the Copyright Act contains these explicitly targeted exceptions, its role of spreading knowledge and information and enhancing communication is therefore wholly fulfilled; the case law has recognised this, and in any case the interest in free communication is not restricted to the educational or any other limited environment in which the fair-dealing exception operates. This can lead to restrictions in the scope of copyright protection, eg, where the work consists of an account of historical facts as opposed to invented facts, or cases where fact and expression are fused because there is only one possible way in which certain facts may be expressed. See the dissent of Yates J in Millar v Taylor (1769) 4 Burr 2303; 98 ER 201 at 232. Note also the arguments of counsel in Donaldson v Beckett (1744) 4 Burr 2408; 1 ER 837 at 849, to the effect that there can be no copyright in ideas. See also Hollingrake v Truswell [1894] 3 Ch 420

328

Federal Law Review

Volume 23

still inherently fraught with difficulty, and in many cases the real resolution of a dispute, even though expressed in these terms, will depend on a judge's instinct for what is fair in a given case. 19 But the sometimes imprecise nature of the dichotomy, and the lack of consistency in its application, do not detract from its underlying value and importance as a general limitation on the scope of copyright protection. In that sense, the dichotomy is a valuable counterweight to an alluring fixation upon the "just rewards" approach to copyright infringement. 21> Copyright has long struggled with the difficulty of formulating and applying fundamental rules of compromise between, on the one hand, the free circulation of ideas and information, which is to benefit society as a whole, and, on the other hand, the author or copyright owner's power to restrict such free circulation. What constitutes impugnable or acceptable "taking", in the context of the enormously expanded scope for the storage and manipulation of information which digital technology allows, is an additional question with which the law must grapple. However, before returning to that question, I shall take a closer look at the early history of copyright law, which illustrates linkage between copyright and communication. The origins of the structural and doctrinal limitations of the scope of copyright The Statute of Anne of 1709, as the first modern copyright statute in the common law world21 , granted to authors of books a limited copyright of 28 years; this consisted of the exclusive right to publish and print their books in the United Kingdom. 22 A type of

19

20

21

22

at 427, where Linley LJ stated: "Copyright, however, does not extend to ideas, or schemes or systems, or methods; it is confined to their expression; and if their expression is not copied, copyright is not infringed"; and Football League Ltd v Littlewoods Pools Ltd [1959] 1 Ch 637. For a more recent analysis, see Autodesk v Dyason (No 1) (1992) 22 IPR 163 at 171172; and Autodesk v Dyason (No 2) (1993) 25 IPR 33. The breakthrough on this point in the United States came in Baker v Selden 101 US 99 (1879). Note that the difficulty is particularly acute in cases of copying across different media, eg where a literary work has been reproduced in a cinematograph film. Reference is often made in this context to Learned Hand 1's statement in Nichols v Universal Pictures Co (1930) 45 F 2d 119 at 121: "Copyright cannot be limited literally to the text, else a plagiarist would escape by immaterial variations". Lahore has suggested that it is incorrect to say that there is no protection for "ideas" in copyright law; see J Lahore, Intellectual Property in Australia: Copyright (1988) at footnote 2.3.25. Others have pointed out that in certain cases, particularly regarding designs, courts have extended copyright so far that it does protect ideas. It is also interesting to note that under the United States Copyright Act, protection does not extend to " idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied.": 17 USCA Para 102. The importance of the fair dealing exception to copyright further illustrates the desire to fit copyright within a structure conducive to free communication and debate about facts and ideas. Other aspects of the Copyright Act also underline this basic policy aim, eg the compulsory licences for educational use and for use in certain institutions assisting the handicapped, as well as in public libraries. Note, however, the Licensing Act 1662 (13 and 14 Car II, c 33) and the Star Chamber Decrees of 1586 (transcribed in II Arber 807-812) and 1637 (IV Arber 528-536) which regulated the printing of books. There was also a separate practice of granting printing patents by Royal Charter. For a general history of copyright law, see W Cornish, "Das Statute of Anne (8 Anne c.19)" in E Wadle (ed), Historische Studien zum Urheberrecht in Europa, Schriften zur Europaischen

1995


329

non-statutory copyright did exist before the Statute was enacted, in the form of an exclusive privilege to print copies of books; it had been the earlier advent of the new printing technology which provided the spur for the development of exclusive reproduction rights, more truly monopolistic in that they were unlimited in duration and were not merely anti-copying rights. 23 Printing had become dominated by a privileged guild, the Stationers' Company of London. In return for the granting of exclusive power over the printing of books, the Company fulfilled a vital censorship role on behalf of a monarch faced with the threat, posed by the new reproduction technology, of the wide and unchecked spread of politically and religiously subversive (heretical) ideas. Pre-Anne, copyright was thus a system of privilege based on a mutual accommodation between an autocratic and absolutist ruler who wished to maintain control over potentially threatening information, and a guild which in return for monopolistic rights enforced censorship and licensing rules. The rights of the Stationers' Company in registered copyright works were perpetual, and some of the most valuable copyrights (or "copy" as it was then known) were in venerable works such as the ABC, catechisms and the Bible. As the autocratic political system broke down during the second half of the seventeenth century, the power of the guilds declined, the economy started to liberalise (away from a system largely based on various patents, privileges and monopolies) and the much despised system of censorship disintegrated and was abolished. This left the Stationers' Company's monopoly over printing potentially without a potent patron or an apparent raison d'etre. To secure its continued monopoly rights, notably against provincial printers, the Company agitated for the statutory recognition of a copyright based on the device of authors' rights, rather than on an exclusive privilege of printers and publishers. In the Statute of Anne, they were successful in obtaining such a copyright by statutory grant. But the copyright was limited in time, as the feeling was turning against unlimited monopolies of all kinds, and was carefully circumscribed. 24 The established publishers would have preferred a permanent copyright, which they claimed could be based in common law, rather than in a statutory grant. But in Donaldson v Beckett,25 the idea of a perpetual common law copyright was rejected. The only basis for copyright lay in the statutory grant of a limited monopoly by the Statute of Anne, at least for published works. A separate, but of necessity limited, form of copyright persisted in unpublished works, but once a work was published the only rights were those under the Statute. In effect, although the Statute recognised the author as the fons et origo of copyrights, this was initially conceived as little more than a formality, a device contrived by the printers to protect their interests. For that reason, copyright as enacted constituted an uneasy amalgam of publishers' exclusive economic

,

Rechts- und Verfassungsgeschichte, Band 109 (1993); B Kaplan, above n 12; Fe Avis, The First English Copyright Act 1709 (1965); M Rose, "The Author as Proprietor: Donaldson v Beckett and the Genealogy of Modern Authorship" (1988) 23 Representations 51; S Ricketson, The Law of Intellectual Property (1984) at 57-81. See also F D Prager, above n 7, and L R Patterson, 23

24 25

above n 7. Before the advent of book printing, copies were manufactured laboriously by hand in monasteries or by specific groups of skilled artisans. Note the Statute of Monopolies 1623 (21 Jac I, c 3) which abolished all privileges with the exception of those in writings and in inventions. (1744) 4 Burr 2408; 1 ER 837.

330

Federal Law Review

Volume 23

rights in the pre-Anne sense, fused with authors' rights which were more in the nature of rights to determine the contents of works, and to alter and adapt them. The general political circumstances surrounding the proclamation of the Statute of Anne thus show a preoccupation with promoting the free flow of information. But so did the express terms of the Statute: it imposed price controls, freed up imports, directed the central deposit of a copy of each work, and made copyright dependent upon publication. 26 In a society which was becoming more liberal, copyright, as an exclusive right to publish and distribute copies, was the perfect medium, in its necessary co-operation between author and publisher/printer, for the relatively unrestricted spreading of new political, social and cultural ideas. It promoted both the production of books and their distribution at a reasonable cost, because of economies of scale and competition. It no longer in any way impeded the spread of ideas as it had under the Stationers' monopoly, but was seen as encouraging such dissemination. For that reason, even though based on the author's rights to her creation, copyright extended only over those rights which a publisher needed to secure to make an investment in publishing a book a potentially viable business, and was not an allencompassing exploitation right. Publishers' rights were thus granted to authors more as a matter of form, since the real purpose of the Statute was to eliminate the publishers' unacceptable market behaviour based on monopolistic and perpetual copyrights. Rather than granting a monopoly, the Statute aimed to prevent monopolistic behaviour in the future. Copyright thus broke free of its use as an instrument of censorship or a control on the flow of information, amidst clear determination that it should have exactly the opposite effect. Ab initio therefore, it was recognised that such a conceptually modern copyright should extend only over expression, not ideas, only over form, and not over content. The origins of modern copyright are thus closely intertwined with the transition from a strictly regulated autocracy, to a situation in which free expression and communication became central within a liberal and progressive, as well as rationalist and secular, society. Thereafter, it is not surprising that authorship based on individual and original contribution, came more and more into its own, and the role of copyright in disseminating the original ideas and factual discoveries of authors became more widely accepted. Since, in the post-Anne copyright regime, the publisher's and the author's rights became fused, it is not surprising that it was not long before copyright law developed a concern not only with the pirating of works, but also with the broader issues of non-literal copying, plagiarism and imitation. In the context of this extension of copyright, the idea/expression dichotomy evolved as a limiting mechanism which ensures copyright does not develop into a system of control over facts and ideas per se, but maintains its aim of encouraging their distribution. The rationale of copyright law is the same now as it was then. In more recent times, due to digitisation and the rapidly changing nature of communications technology, the structural limitations on copyrights and the application of the idea/expression dichotomy, and the fundamental aims of copyright which they express, have come under renewed pressure. One example is copyright in compilations, and in their more modem form, electronic databases: the granting of a specific extraction right, or the 26

L R Patterson, "Private Copyright and Public Communication: Free Speech Endangered" 28 Vanderbilt LR 1161 at 1173; and L R Patterson and S W Lindberg, The Nature of Copyright: a Law of Users' Rights (1991) at 126.

r\

1995


331

application of existing rules to the same effect, limits the free access to and availability of facts and ideas. 27 Another example is copyright in software, and the restricted access to computer programs, due to the inherently infringing nature of reverse engineering to extract basic ideas from them. 28 But a more far-reaching development, and one which brings the underlying rationales to the surface, is the new dissemination or use of digitised copyright works through (interactive) transmission, either over wires or wireless. The problem of maintaining incentives, whilst at the same time guaranteeing freedom of communication, takes on a more acute form. I will return to this issue after considering external constraints on copyright law.

EXTERNAL LIMITATIONS ON COPYRIGHT Rights and freedoms On the one hand, free circulation of facts and ideas is a crucial policy goal of copyright law, but, on the other hand, the exclusive rights of the author restrict the freedom of communication of others who are restrained from expressing themselves in ways which constitute infringement. 29 Therefore copyright suffers from an internal paradox which can only be resolved by achieving an appropriate balance between the exclusive rights of authors and freedom of communication. The fundamental importance which a democratic society attaches to such free exchange has found confirmation in many diverse political and legal systems. This might be expressed in terms of a right of access to information, or a right of free speech, or a freedom of expression or communication or freedom of information: there are no doubt good reasons for choosing one expression or another depending on one's desired emphasis. In Australia, freedom of communication has not been supported by any express constitutional guarantee: there is no Bill of Rights and no freedom of speech (let alone freedom of communication) in the Commonwealth - or any other - Constitution. However, the development of an implied freedom of political communication constitutes a major change. Before considering the Australian situation in more detail, it is instructive to examine the position in the United States, since in that jurisdiction freedom of speech has been a basic tenet of constitutional law, relevant to legal matters, including copyright law. The tension between free speech and copyright law has thus found expression in the United States in an illuminating manner.

27

28

29

CLRC, Issues Paper: Computer Software Protection (1990); CLRC, Draft Report on Computer Software Protection (1993); CLRC, Final Report on Computer Software Protection (1995). Note also the European Union proposals concerning a new extraction right applicable to databases: EC Amended Proposal for a Council Directive on the Legal Protection of Databases, 4 October 1993, COM (93) 464 final- SYN 393, OJ, No C 308/1 of November 15, 1993. The CLRC in its Final Report has not recommended adoption of an extraction right. Note also that the Committee of Experts on a Possible Protocol to the Berne Convention, established by the World Intellectual Property Organisation, is investigating the inclusion 'of databases in a possible Protocol to the Berne Convention. To derive information about the structure of a computer program it must be translated back from digital to source code, since in digital form it cannot be analysed. Such "reverse engineering" or decompilation necessarily involves infringing reproduction or adaptation of the program. See above at 323-326.

332

Federal Law Review

Volume 23

Copyright and the First Amendment to the United States Constitution The tension between the copyright power as bestowed on the Federal Congress by the Copyright Clause of the Constitution, and the right to free speech recognised in the First Amendment illustrates the way in which this issue has been addressed in American jurisprudence. 30 Until quite recently, the apparent contradiction between the two elicited little comment. Then various articles drew attention to the potential for direct conflict and to the fossible use of the First Amendment as a defence to infringement of copyri ht. 3 During the eighties, the expansion of copyright rights through look and feel 3 and the question of protection for factual compilations have resulted in further analysis of the free speech implications of certain interpretations of the Copyright Act. 33 However, for the most part, courts still gave little consideration to

f

30

31

32

33

"Congress shall make no law ... abridging the freedom of speech, or of the press", United States Constitution Amend I. The United States Constitution grants Congress the power "to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries", United States Constitution art I, para 8, cl 8. The purpose of copyright is thus to secure "the general benefits derived by the public from the labours of authors". On the general aspects of constitutionality of the copyright clause, see M B Nimmer, Nimmer on Copyright, Para 1. 10 at 1-78: "Take the most important objective that underlies freedom of speech - the maintenance of the democratic dialogue. That process is also known as the marketplace of ideas, and not without reason. It is exposure to ideas, and not their particular expression, that is vital if self-governing people are to make informed decisions. It is important that we have free access to the ideas of both William F Buckley, Jr and John K Galbraith; and everyone should have the right to disseminate Buckley's and Galbraith's ideas, either by way of endorsement or criticism. But that process of enlightenment does not require the freedom to reproduce without permission either Buckley's book Up from Liberalism, or Galbraith's The Affluent Society. To reproduce the expression of their ideas may add flavor, but relatively little substance to the data that must inform the electorate in the decisionmaking process. Such minimal substance, lost through the copyright prohibition on reproduction of expression, is far out balanced by the public benefit that accrues through copyright encouragement of creativity." Later he says: "In some degree it [the idealexpression line] encroaches upon the author's right to control his works in that it renders his 'ideas' per se unprotectable, but this is justified by the greater public need for free access to ideas as a part of the democratic dialogue." See M Sobel, "Copyright and the First Amendment: A Gathering Storm?" (1971) 19 Copyright Law Symposium 43; M B Nimmer, "Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?" (1970) 17 UCLA L Rev 1180; P Goldstein, "Copyright and the First Amendment" (1970) 70 Colum L Rev 983; R C Denicola, "Copyright and Free Speech: Constitutional Limitations on the Protection of Expression" (1979) 67 Calif L Rev 283; L R Patterson, "Private Copyright and Public Communication: Free Speech Endangered", above n 26. The "look and feel" method of analysing the question of infringement of a computer program is one way of approaching non-literal infringement of computer programs. The emphasis in this method is not on a comparison of the source or object codes, but on the appearance and functioning of the program when it is loaded on a computer, as displayed on a computer screen. Eg, M J Haungs, "Copyright of Factual Compilations: Public Policy and the First Amendment" (1990) 23 Colum J L & Soc Problems 347; A C Yen, "A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work's Total Concept and Feel" (1989) 38 Emory LJ 393 (with criticism of the Broderbund case); L R Patterson and S W Lindberg, above n 26 ch 9: "Copyright and Free Speech Rights". See also W E Lee,

1995


333

the issue, limiting themselves to dismissing any possible conflict without extensive reasoning. 34 The reason the apparent contradiction caused few judges any difficulty is the ease with which judges have found that the idealexpression distinction reconciles the freedom of speech guarantee with federal copyright law. 35 The courts reason that as long as copyright is limited to the expression of certain ideas, and does not inhibit the free circulation of the ideas themselves, the restrictions it entails are justifiable, nay beneficial, because copyright aims to promote the production and dissemination of such ideas, in expressed communicable form, to the maximum possible extent. In other words, copyright fulfils its stated constitutional function of "promoting progress and the useful arts" if, in copyright law, free access to ideas, and free use of those ideas, are effectively combined with restricted use of the form in which they are expressed. In terms of infringement, if imitation is the taking of ideas or facts, it is acceptable; if it is the taking of expression, it may amount to an infringement if the other conditions for such a finding are fulfilled. On the one hand, the American cases do, in their specific questioning of the effect of a potential finding of infringement on the free speech rights of the alleged infringer, bring the debate down to earth. But, on the other hand, the ease and glibness with which the idealexpression solution has been accepted as resolving this question is surprising, in spite of what I said in the previous paragraph, and particularly given the practical difficulties of implementing the dichotomy between ideas and expression. However, a recent case, Harper and Row v Nation Enterprises,36 has initiated a trend towards giving more careful consideration to the First Amendment implications of infringement actions in an area in which the underlying policy considerations of the Copyright Act are most apparent, that of fair use (or, in Australian terms, fair dealing). The case concerned President Ford's memoirs and the political nature of the work thus put the issue in sharper focus. Whether the new technologies of digitisation and communication may in the future threaten the relative complacency with which the reconciliation question has been treated remains to be seen. Indeed, it is not only in specific infringement cases that the free speech implications of copyright law have been

34

35

36

"Cable Franchising and the First Amendment" (1983) 36 Vand LR 867 and K J Burchfield, "The Constitutional Intellectual Property Power: Progress of the Useful arts and the Legal Protection of Semiconductor Technology" (1988) 28 Santa Clara LR 473. Eg, Smith v California 375 US 259 (1963) (concerning Tropic of Cancer); Lee v Runge 404 US 887 (1971) at 200, where Douglas J observed: "Serious first amendment questions would be raised if congress' power over copyrights were construed to include the power to grant monopolies over certain ideas"; Zacchini v Scripps-Howard Broadcasting Co 443 US 562 (1977); New York Times Co v Sullivan, 376 US 254 (1964); Garrison v Louisiana, 379 US 64 (1964); Sony Corp of America v Universal City Studios Inc 464 US 417 (1984). See also Time Inc v Bernard Geiss Assoc 293 F Supp 130 (SONY 1968) where the public interest was held to justify the reproduction of frames from the Zapruder film of President Kennedy's assassination in a book, without authorisation. The copyright laws themselves are also based on a constitutional provision which grants the Congress the right to instigate copyright and patent rules "to promote the progress of science and the useful arts", so that it is an inescapable necessity to reconcile the two; the framers of the Constitution obviously saw them as compatible. 471 US 539 (1985). The majority held that there was no basis in the First Amendment for a rule giving the fair use doctrine a broader scope in cases involving a public figure's manuscript. See also L R Patterson and S W Lindberg, above n 26 at 124.

334

Federal Law Review

Volume 23

expressly aired in the United States. In the debate about the implementation of a National Information Infrastructure, access to information, as a vital element of free communication, is put forward as an explicit requirement for a functioning democracy and one which should guide the law reform process. 37 Copyright in the Australian constitutional context Australia differs from the United States in that there is no readily available legal right which may be a focus for arguments concerning the public interest in dissemination of ideas and information, whether in any specific infringement action or, for that matter, in any debate about law reform. There is no such right to be found in the Commonwealth Constitution. 38 Furthermore, whereas the Commonwealth has the power to regulate copyright,39 the Constitution says nothing explicitly as to the limitations to which this regulation of copyright may be subject (such as, for instance, the words "to promote the progress of science and the useful arts", which limit the United States copyright power): Parliament's power is thus apparently unfettered by any policy limitations or constitutional guarantees. However, the lack of constitutional recognition of fundamental rights does not lay the whole matter to rest. Freedom of speech interests have been recognised as fundamental to our legal system, and are adequately protected by the system of representative democratic and parliamentary government itself. Furthermore, the High Court has recently recognised that the representative democratic underpinning of our Constitution implies a freedom of political speech. 40 It may quite justifiably be questioned whether a fine distinction between political and other forms of speech (or between freedom of speech and a broader recognition of freedom of communication and thus rights of access to information, as exist in the United States41 ) will be tenable in the future, or whether the innate dangers and futility of such a distinction should be accepted. But even if the High Court cannot escape the confines of a narrow interpretation of the implied rights in the Constitution, a measuring of copyright law against explicit external standards is still appropriate. Even the limited form of free expression which puts exclusive emphasis on the democratic political rationale for freedom of communication, may be relevant in specific copyright infringement cases. And, taken in conjunction with common law rights,42 the fundamental democratic nature of our political system justifies a careful consideration of the tension between copyright and freedom of communication in Australia. It is therefore not futile or premature to assess the present law - particularly proposals for law reform and the 37

38 39 40

41 42

See, eg, Information Infrastructure Taskforce (ITT), The National Information Infrastructure: Agenda for Action, September 1993; lIT, Green Paper: Intellectual Property and the National Information Infrastructure, a preliminary draft of the report of the Working Group on Intellectual Property Rights, July 1994. In the European Union similar issues have arisen: see, eg, the case of NV Televizier v The Netherlands, Council of Europe Doc No 5097 (n 2690/65, Dec 15, 1966). Commonwealth of Australia Constitution, s 51 (xviii). See Nationwide News Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 136; Theophanous v Herald and Weekly Times (1994) 124 ALR 1; Stephens v West Australian Newspapers Ltd (1994) 124 ALR 80; Cunliffe v The Commonwealth (1994) 68 ALJR 791. See L R Patterson and S W Lindberg, above n 26. See, eg, Polyukhovich v The Commonwealth (1991) 172 CLR 501.

1995


335

limitations on the nature and form of copyright laws which constitutional free speech guarantees impose. The words of Brennan J in Harper & Row v Nation Enterprises apply here too: A broad dissemination of principles, ideas, and factual information is crucial to the robust public debate and informed citizenry that are "the essence of self-government"... And every citizen must be permitted freely to marshal ideas and facts in the advocacy of particular political choices ... It follows that infringement of copyright must be based on a taking of literary form, as opposed to the ideas or information contained in a copyright work.'t3

Having reviewed some aspects of the communication and dissemination function of copyright law, I shall next consider the nature of the technological challenge copyright law now faces, how the law stands at present, and some options for addressing the issues.

DIGITISATION AND THE FUTURE OF COPYRIGHT LAW The technological challenge: digitisation and the communications revolution All copyright works may now be stored in, and reproduced from, a uniform digital format, the only limitation being a restriction to two-dimensional representations. 44 The traditional distinctions between literary, artistic, dramatic and musical works, as well as between these works and subject-matter other than works (films, sound recordings, broadcasts, published editions of works) becomes meaningless in a digital dimension: there is a "convergence" of copyright categories. 45 Furthermore, new forms of expression are conceived as an integrated amalgam of traditional categories: multimedia products allow works with an indeterminate form which may even be manipulated and to a large extent "created" by the user. But the most drastic change does not lie in digitisation as such, but in the new communication technologies, which mean digitised works can be transmitted and instantaneously "delivered" (either via cable or via wireless communication systems) to any person with an appropriate receiving device. This fundamentally affects dissemination of copyright works, since it reduces the need to make multiple copies of a work for purposes of distribution. Through the development of interactive links, requests for, and access to, works and subject-matter through their direct transmission from a central provider's storage medium can be virtually instantaneous and need not involve any reproduction, or at least may require only limited or ephemeral copying. 46 That this technological development is a quantitative leap in the manner of exploitation of copyright works is undoubted. Also beyond doubt is that the present law is only partially effective in dealing with this new environment. Above all, the law relating to electronic transmission is outdated and unclear. But why in reforming the law in response to this technological challenge, should particular attention be given to the dissemination and communication function of copyright law?

43 44 45

46

471 US 539 (1985) at 621. Although with the development of virtual reality this is no longer a real limitation, since the impression of three dimensions can be successfully recreated on a computer. See CCG, above n 2. See the various Reports on Computer Programs, above n 27.

336

Federal Law Review

Volume 23

A developing question One reason little explicit consideration has been given to the potential conflict between copyright and the right to free speech is the lack of such a right in Australia and the United Kingdom, a factor to which I referred above. But the main reason may be that copyright in its traditional and rights-limited form so clearly favours the "marketplace of ideas". Copyright does not simply recognise free communication, it is not just a passive object to which such rights might be applied; rather, one of its essential aims is to promote such communication of facts and ideas. Its basic structure allows publication of information to co-exist with the maintenance of rights which ensure real benefit and thus real incentive to those who provide and disseminate information. In this way it is similar to the grant of a limited exploitation monopoly, which acts as a "carrot" for patentees to publish (that is, make public) their inventions (in published specifications) rather than keeping them secret; this promotes technical and scientific advancement. Copyright as it stands thus allows us to dispense with secrecy and selective and restrictive access measures, and promotes the distribution of all sorts of information, both useful and useless, practical and ephemeral, aesthetic and functional without distinction, while maintaining adequate rewards. Thus because returns from copyright depend on publication and the widest possible dissemination, copyright owners tend to maximise access to their works to maximise income, rather than placing restrictions on access. Furthermore, the first sale or exhaustion of rights doctrine means that whenever a copyright work is first sold, the copyright owner loses any further rights over it, subject to some exceptions. 47 In other words, after first sale there is no further control over access to or distribution of a copyright work, as long as it does not involve unauthorised copying or some other infringement. As a result, restrictions on copying without authorisation were never seen as threatening to free speech but as fair: after all if persons wished to take the ideas within a work, let them do so, as long as they do not reproduce its expression. 48 However, new communications technology challenges traditional copyright structures: accessing digitally stored works through (interactive) transmission alters dissemination techniques and thus influences the attainment of the traditional policy goals of copyright. In other words, in the new electronic environment, instead of maximising distribution (a high volume, low cost option), denying access (a low volume, high cost option) may be a more rational basis to ensure adequate returns from copyright works. All the more so as, because of digitisation, once access to a work has been granted, it becomes much harder to detect infringement of reproduction and distribution of copyright works. Furthermore, the new technological means of access also create greater practical, technical (the need to have a terminal and be linked up), 47 48

Eg, the so-called moral right of attribution. Although examples of the use of copyright to prevent circulation of facts or ideas have been known. An interesting example in the United States was Rosemont Ent Inc v Random House Inc 366 F 2d 303 (2d cir 1966): the reclusive millionaire Howard Hughes through his company Rosemont purposefully acquired the copyright in a series of articles about his life published in Look magazine. On the basis of those articles he was able to enjoin publication of an unauthorised biography. The injunction was overturned on appeal, although substantial portions of the biography were copied from the Look articles. For another analysis of the use of copyright to control content rather than form, in relation to obscene or subversive works, see R G Howell, "Copyright and Obscenity: Should Copyright Regulate Content?" (1994) 8 Can IP] 139.

1995


337

financial (the cost of hardware and software as well as access) and educational (the skill required to use the equipment) barriers. It is of course true that it is hard at this stage to determine whether things will tum out this way: the technology may become much cheaper and more practical; the actual costs per access to a digitally stored work may in the end be less than the cost present methods entail. However, it is clear that digital and communications technology could have a major impact on the dissemination function of copyright, and that, while maintaining its incentive function, various alternatives should be considered which limit that impact. In the next part I put forward some suggested alternatives; undoubtedly there are many other possible solutions, some much better than these. They are meant only as a starting point. Possible responses to new communications technology

At present: a technology-specific approach The traditional response of copyright law to technological change is the incremental development of new rights based on new technologies. When electronic communications technologies first became current,49 the Copyright Act was amended to add two distinct technology-specific rights: the exclusive right to broadcast, and the right to transmit to subscribers to a diffusion service (the cable right).50 One might therefore think that the Copyright Act fully covers cable transmission of works and subject-matter in digital form. However, the cable-casting right is subject to a number of difficulties and obscurities, which means that it does not comprehensively cover the transmission of copyright matter via cable in an interactive service environment. 51 The origin of the cable right is as a limited redistribution right for broadcasts, and thus is subsidiary to the broadcast right. It was included in the Copyright Act to recognise the capturing of free-to-air broadcasts (that is, wireless transmissions) for further distribution via cable to remote areas where the broadcasts themselves could not be received. The Berne Convention required only this limited cable retransmission right. However, some member countries, including Australia, inserted the cable-casting right into their copyright Acts as a right separate and additional to the broadcasting right the cable right (which was the main new form of exploitation of copyright works at the time), rather than as a subsidiary retransmission right only.52 Thus the cable right goes beyond the retransmission of broadcasts, and covers certain other works and subject-matter as well. But, since this was not its primary purpose, the cable-casting right is in fact ill-adapted to the direct and primary transmission of other categories of works and subject-matter. 49

50 51

52

The question of digitisation itself and protection of digitised works, computer generated works and databases, as opposed to their digital transmission, is not covered here: for consideration of those matters, see the Reports mentioned above, n 27 concerning computer programs. Section 31(v): to cause the work to be transmitted to subscribers to a diffusion service; the same words apply to films: Copyright Act 1968 (Cth), s 86. Future technologies would not necessarily require the use of cable to transmit data on request, and the diffusion right covers only transmissions by wire; on the other hand the broadcast right as it stands seems only to cover wireless transmissions to the public and not to individual (interactive) users. S Ricketson, The Berne Convention on the Protection of Literary and Artistic Works, 1886-1986 (1987).

338

Federal Law Review

Volume 23

The cable right does not extend to artistic works or to sOUlld recordings. It also relates only to transmission to subscribers (that is, to the premises of subscribers) to a service: if the transmission is made on a basis or in a context other than subscription, the cable-casting of certain works would be beyond the copyright owner's control. The precise meaning of this requirement and the need for a distinction between broadcasting "to the public" and cable-casting "to subscribers" is unclear but probably lies in the unrecognised potential of transmission technologies at the time of drafting of the relevant provisions of the Act. An additional complication is that, although under the Berne Convention cable-casting is classed as a sub-category of the public performance right, under the Australian Copyright Act the public performance right is a right separate from and additional to the cable-casting right. 53 This creates further confusion since it is quite arguable that the public performance right separately covers the transmission of works via cable to a number of members of the public, whether simultaneously or not. Public performance has traditionally been seen as related to the performance of a work before a group of people together in a non-private setting. This means that if the viewing occurs in the home, which is obviously a private setting, accessing cable services would not be public performance. The opposite would apply to business use. However, there is a contrasting view that public performance is not performance in a public setting, but performance to the copyright owner's public, that is, those who would pay to view her works. Transmission to multiple but not necessarily simultaneous private viewers would then constitute public performance. 54 A distinction between family and friends and members of the public or people brought together by other than family or friendship ties may be redundant. The result is that cable transmission could fall under the public performance right as well as under the diffusion right. There are some other problems with the Act, for instance, a lack of clarity about the use of satellites to transmit copyright matter, and the absence of copyright protection for cable programs as subject-matter. Because of these anomalies and lacunae in the law as it stands, reform is undoubtedly necessary in an area of growing economic importance. At the very least, there is an unacceptable lack of clarity concerning the rights of copyright holders over transmission of both Part III works and Part IV subject-matter. There appears to be no good reason to maintain the distinction between transmission technologies, since the two technologies will probably converge and become cumulative and intermingled. However, whether the new communications technologies justify a radical revision of the basic structures of the Copyright Act is a different matter.

A technology neutral approach? One possible reform is to provide for a broad transmission right extending to all copyright works and subject-matter. 55 This would replace the existing technology53 54

55

Ibid. This argument is supported in the United States, see above n 37, Preliminary Draft at 25. The concept of the copyright owner's public was aired in Rank Film Distributors Ltd v Dodds (1983) 2 IPR 113; and APRA v Canterbury Bankstown Leagues Club Ltd (1964) 5 FLR 415. See also APRA v Telstra Corporation Ltd (1993) 27 IPR 357; and APRA v Commonwealth Bank of Australia (1992) 25 IPR 157. It is not yet possible to comment on the CLRC recommendations, although the Reference proposes investigation of a broad right of this kind: CLRC, above n 1. This accords approximately with the recommendation of the CCG. A right over "the transmission of

1995


339

specific, limited cable-casting and broadcasting rights with a broad right to authorise the transmission of all copyright works and subject-matter via cable or wireless to anyone who has the means to receive and view or otherwise utilise them. Although this may appear to be a minor modification, merely resolving the technical problems with the current broadcasting and cable-casting rights, it would in fact constitute a radical change. Since the essence of a broad transmission right is the power of the copyright owner to license remote access to a digitised work or subject-matter via some electronic means, the effect of such a reform on the dissemination and communication function of copyright law may be considerable. 56 As an access right, the transmission right would go beyond the present copyright law, under which the copyright owner has no statutory right to deny access to works, but only controls the reproduction of works. In terms of the idealexpression dichotomy, a broad transmission right would cause potential difficulties: if a user can no longer gain access to a work without the consent of the copyright owner, she is not in a position to freely derive facts and ideas from it. A copyright owner would thus be in a position to interdict the taking of ideas and facts, not simply their mode of expression. In terms of the structural limitations on the exclusive rights, to which I referred above,57 this would constitute a considerable extension of the rights of the copyright owner; it would move closer to an exploitation right and would therefore constitute a departure from the limited rights structure of the present Act. The fine balance inherent in having technology-specific rights under copyright law would be threatened, and the copyright owner's "monopoly" extended. 58 Control over access to copyright works may tend to inhibit rather than encourage the wide dissemination of facts and ideas and "acceptable" imitation, and may contradict a

56

57 58

copyright material in intangible form to the public by any means or combination of means which is capable of being made perceivable or used by a receiving device", is proposed. The broadcasting right, although only as a sub-species of the transmission right, would retain a separate existence in the Act, mostly to recognise the distinct use in free-to-air broadcasts over TV and radio. "The public" would not be defined but transmissions (as defined) made for commercial purposes would be deemed to be to the public: CCG, above n 2. The right of communication to the public originally put forward as a solution in the preceding Issues Paper was thus narrowed in the final report, see CCG, Issues Paper, June 1994. Fraudulent reception of transmissions and the making, importing or selling of unauthorised decoding devices would be made criminal offences. See also "Copyright Implications of Pay Television" Bulletin 82, Australian Copyright Council, December 1993. What arguments would reasonably support a different approach to the question of infringement in cases of remote access to a work, and in cases of direct access, is not clear. Note also B Kaplan, above n 12, at 103-104, who in a remarkably prescient passage asks why storage of works on computer in itself should be infringement rather than their use in some way. The same could be said t'O apply to transmission of works. See above at 326 ff. Note that this problem has arisen in the area of reverse engineering of computer programs, since there too, as noted above, it is impossible to gain access to the ideas behind a work without infringing the copyright in it. Note, however, the recommendations of the CLRC: Final Report on Computer Software Protection, see above n 27. Note also the extraction right proposal in the European Union: EC Amended Proposal for a Council Directive on the Legal Protection of Databases, see above n 27.

340

Federal Law Review

Volume 23

main policy aim underlying copyright. 59 It is thus clear that moving to a broad transmission right is potentially a radical change within copyright law. The importance of the broader access question is clearly illustrated by the issue of copyright in compilations and databases. Due to the low level of originality required to attract copyright in compilations of pre-existing materials,60 and the fact that many of these compilations would be created and stored on computer and made accessible via cable or wireless transmission to subscribers to a database service, there is a considerable danger of the monopolisation of factual information through the medium of copyright and hence of the monopolisation of access to facts. Further, more and more works will be created ab initio on computer and will simply not exist in any other form. This will be the case particularly with multimedia works, as well as with virtual reality creations and the like. There will often be no alternative access routes because such works would not be published in any other form. With the introduction of lending rights for other than computer programs and CDs, further avenues will be cut off, at least to some degree. 61 I have put the potential negative impact of a wide transmission right in very broad and general terms. However, there may be ways in which we can maintain the right of the user to extract ideas from a work without infringing copyright or without having to obtain - via the medium of a licence to access through transmission - access authorisation from the copyright owner, whilst, at the same time, meeting the real economic need of the copyright owner. In the next section I make some suggestions concerning alternatives; they are by no means meant to be exhaustive. Possible alternative solutions

Publication I have already suggested that the communications issue is especially acute in relation to works which are only made available via electronic means, that is, by digital distribution via cable or wireless, rather than by the provision of multiple hard copies to the public. If such provision qualifies as publication within the meaning of the Copyright Act, it could give rise to exclusive rights, in a case where there is no copyright in the unpublished work (that is, if the work is not made by an Australian citizen or resident, but copyright subsists because of first publication in Australia or the operation of the Berne Convention).62 This would mean that the work need not be in the market in any form which can be accessed non-electronically without the 59

60 61 62

Furthermore, the first sale or exhaustion doctrine could not be applied to such a right: a work or subject-matter would never escape from the control of the copyright owner. It would also seem to render difficult the application, at least in practical terms, of certain statutory limitations to the rights of the copyright owner, eg the fair dealing exception. Note the seminal United States decision on this issue in the context of telephone directories: Feist Publications Inc v Rural Telephone Service Co (1991) 20 IPR 129. In Australia standards generally appear to be lower. See Copyright (WTO Amendments) Act 1994 (Cth). There is, of course, copyright in unpublished works, but if a work is not first published within Australia, or the author is not an Australian citizen at first publication, such copyright is lost. The concept is thus crucial to the subsistence of copyright once the work is published. At present, s 29(1) of the Copyright Act defines publication for literary, dramatic, musical and artistic works as the supplying of reproductions of the work to the public, whether by sale or otherwise.

1995


341

authorisation of the copyright owner. Thus one alternative may be to retain the requirement that to attract copyright, publication must occur through the making available of reproductions to the public, or alternatively that the transmission right not be available for those works which have not also been published in some other form. As far as copyright in unpublished works is concerned (that is, works which are made by an Australian citizen or resident), while such a work remains unpublished there is no problem: the author is entitled to exercise his or her rights not to publish the work, and cannot be forced to do so. But once the work is published, it may be possible to deny electronic copyright unless the work is published in an alternative form as well. The example of electronic databases given above illustrates the importance of this issue: pre-existing data could be gathered into a database or stored on computer, and, with a minimum of originality, would attract copyright protection, resulting in a virtual monopol~ of access via a transmission right, without the data being available in any other form. 3 This would give unprecedented control over data or facts as such. Further, it raises the question as to how infringement would be disproved in these circumstances. The problem with this solution is that it might impose considerable costs and stultify a newly developing electronic publishing industry. One of the advantages of the communications and digitisation revolution is, after all, that it brings the wide distribution of works within the purview of the author herself: to place a work on an electronic network, no expensive, royalty-sapping intervention of a publisher is required. On the other hand, such a distinction may be warranted: either a person aims to obtain revenue from the publication of a work, and some investment in hard copy production would be required, or she does not, and then the work will be available on a network free from copyrights.

The distinction between Part III and Part IV It is in the context of Part III works that the issue of access presents itself at its most acute. If extending the copyright holder's rights results in a restriction of access to political ideas and facts, even the limited implied freedom of political speech recognised by the High Court may be jeopardised. 64 In this narrow context, the problem principally relates to literary and dramatic works, since such primary works convey political discussion, facts and ideas in their clearest and most direct form. However, artistic and musical works may carry political messages as well, and it may therefore be artificial to make a distinction between them. For that reason I proceed on the basis of a broad distinction between Part III and Part IV, while recognising that it might be warranted to confine the option of denying a transmission right to literary and dramatic works only. If the transmission right were limited to Part IV subject-matter (amended to include sound recordings), Part III works would remain free to be viewed or accessed (but not reproduced), be it by remote means or immediately. Part III is concerned with primary 63 64

For one consideration of this issue, see E J Dommering and P B Hugenholtz (eds), Protecting Works ofFact, Copyright, Freedom of Expression and Information Law (1991). Note that a freedom of political speech must include a right of access to political expression. See also T Campbell, in T Campbell and W Sadurski (eds), above n 5, who notes the importance of dialogue leading to compromise in a democratic society, and the fact that individual citizens may possess information which is of relevance to the political process.

342

Federal Law Review

Volume 23

rights, not neighbouring rights, that is copyright matter in rawer form. If a work is only published on a network, producing it in an accessible form does not require great investment beyond authorship itself, and there is no risk of producing multiple copies in excess of market demand. Part IV subject-matter, on the other hand, usually requires greater investment in production; hence the fact that the owner of copyright in Part IV subject-matter is not the owner but, in a broad sense, the producer. This often involves elaborate transformation of Part III works, whether still subject to copyright protection or not. Such works are often already, or may be made, accessible in some other form, for example, as a novel on which a film may be based. Even if not based on pre-existing works, Part IV subject-matter will always be subject to a more considerable investment in production, even if only produced for cable transmission. Part III works require less transformation, certainly if only made available over cable and not as published editions. 65 Furthermore, the normal channels of revenue generation from Part IV subject-matter would be more readily affected by the new cable/interactive system, and a lack of a transmission right would have more drastic effects on the owners of Part IV copyrights. In other words, since making works available in their "raw" state (not incorporated in sound recordings or films or other subject-matter) could be done at low cost and without putting much capital at risk, it may be appropriate to deny transmission rights for such works, while maintaining them for other subject-matter. It should not be forgotten that the copyright owner would still be able to rely on the exclusive reproduction right, which would have to be maintained in the Copyright Act as such; I return to this issue in the next section. Would this constitute an unwarranted reduction of the rights copyright owners in Part III works presently enjoy, given that they have a certain limited transmission right now? If we take into account that the diffusion right was originally granted as a limited rediffusion right, this is hardly tenable. It is also not clear from the Berne Convention that the cable-casting right was meant to apply to works not transformed or adapted into broadcast programs (that is, in some way performed or declaimed). Part III works themselves were not cable transmittable at the time. The above may sound like a radical proposal, but it should not be forgotten that until relatively recent times the transmission of literary or other works as such over any network hardly occurred; the Copyright Act is not geared to this kind of use. Further, this alternative would leave the way free for a continued reliance by the copyright owner in Part III works on the reproduction right. The copyright holder under Part III would not be entirely deprived of any contractual or licensing control over the transmission of performance of her works. Firstly, the production of all Part IV subjectmatter on the basis of copyrighted works is within the exclusive rights of the copyright owner of such works. Further, the diffusion of her works (that is, the transmission of texts in digital form) might, in varying circumstances, amount either to "digital translation" (that is, adaptation - an exclusive right under Part III), or to the 65

There is a question as to the nature of a published edition of a work in a digital publication context. Would this include a version of a work produced for the purpose of computer transmission? The CLRC and CCG have rightly recommended that published edition rights should not extend to works stored on computer where there is no actual reproduction, ie, where there is only transmission by cable, for instance: CCG, above n 2; CLRC, Final Report on Computer Software Protection, above n 27. It is clear that the published edition right should not be allowed to extend to works not published in any other form than electronically.

1995


343

reproduction of that work stored in digital form (if the work is initially created in digital form), and thus will fall within the author's exclusive rights. 66 In many cases, therefore, an unauthorised transmission by cable would be preceded by an infringing reproduction lying at its basis. Also, in many cases where users have a greater use for a work, they would presumably pay to have a copy stored on their computer, or acquire it on a digital carrier or printed copy, thus avoiding the expense of on-line time. Alternatively, if Part III works are granted transmission rights, but only when the work is pre-published in hard copy form (in accordance with the present law in other words), there is no problem from that moment on. 67 It is thus by no means clear that reliance on the reproduction right would not suffice to ensure adequate returns, while allowing a better balance in light of free communication concerns. 6S-

Some further points The above are only two possible alternatives; no doubt there are others, such as some form of compulsory licensing, an adaptation of the first sale doctrine to the cabling environment, or the imposition of a higher standard of originality. Other suggestions are that the copyright rights in fact become more technology-specific and not less, with each different technological use precisely defined. This would accord with the traditional structure of copyright law, but may cause difficulties in an environment of rapid technological progress and discontinuous law reform efforts. It would, in any case, avoid the danger of having rights so broad that they lend themselves to the excessive use of threats of copyright infringement actions. A further alternative is to look at other areas of law, such as trade practices or competition law69, or communications and media law for separate but compatible solutions which specifically safeguard freedom of communication. In this process, however, copyright's basic structures should not be strained by association with certain other branches of 66

67

68

69

It might be worth noting that it could be that the transmission for mere viewing, hearing or reading to a receiving device might in itself involve an infringement, as the unavoidable storage on RAM memory in the receiving computer would, even if transitory, be a reproduction. Note however CLRC, Final Report on Computer Software Protection, above n 27, concerning screen displays. Of course, the reproduction right is also adequate to cope with the problem of in-home copying which is hard to detect and combat. The prevalence of such copying would be likely to have the effect of inflating the cost of, inter alia, sound recordings and cinefilms, since it would be built into the transmission cost. However, modern technological means make it possible to combat such recording, or otherwise a blank tape scheme can be extended to cover all kinds of carriers of either digitally or analoguely stored data. Hence the occurrence of some unauthorised copying should be no excuse for the imposition of a very broad transmission right, the revenue from which would be aimed at compensating the copyright owner for presumed illegal reproductions in the home and elsewhere, but which would be a right which in itself did nothing to stop infringement. Note the lIT, Green Paper, above n 37 at 9: "We believe that with no more than minor clarification and amendment, the Copyright Act, like the Patent Act, will provide the necessary protection of rights - and limitations on those rights - to promote the progress of science and the useful arts". No introduction of a major new right seems to be proposed at this stage. See, eg, H Heker, "The Publisher in the Electronic Age: Caught in the Area of Conflict of Copyright and Competition Law" [1995] 2 EIPR 75. Also see S Corones, "Reconciling Intellectual Property Rights and Competition Law: the Magill TV guide case" (1992) 20 Australian Bus LR 265.

344

Federal Law Review

Volume 23

law with which, because of convergence, it is now more closely concerned. An example is broadcast law, which has distinct policy aims which are still relevant today.70 The essential point is that in granting copyright owners rights that guarantee them sufficient returns in the face of the new communication technologies, it must be possible to achieve an adequate balance with the traditional policy aims of copyright law. Furthermore, it seems that Australia would be running ahead of its competitors if it were to introduce a broad transmission right into the Copyright Act,71 and it is not clear that the Berne Convention or any other international agreement such as GATT requires it. 72 Apparently debate is ongoing in many countries on this issue, but no 70 71 72

The CCG does refer to the synchronisation of copyright and communications law as a desirable goal. Even if this is desirable, where it affects broader underlying principles, it may be a secondary ambition: CCG, above n 2 at 1.3. CCG, above n 2 at 1.3.6. It is important in this reform context that Australia should comply with its treaty obligations and retain a level of parallel development with its major trading partners. Does the Berne Convention require the introduction of a right of transmission to the public? The Revision at Rome in 1928 incorporated broadcasting within the list of copyright rights which were to be protected by member states. However, the Berne Convention only requires the enactment of a specific cable redistribution right for broadcast programs. The result is that the obligations of member states concerning cable originated programs (be they those of the operator or another) fall under the public performance right, at least where dramatic, musical and dramatico-musical works are concerned. Public performance is defined in the Convention as (i) "the public performance of their works, including such public performance by any means or process". In Ricketson's words, such performance is thus either "by some human agent or by some mechanical means which enables that representation to be transmitted to an audience" (emphasis added): S Ricketson, above n 52 at 425. The implication seems to be of a performance, whether live or mechanical, to an audience gathered in a public, not a private, place. Therefore this heading does not seem to cover cable-casting to private premises via the "Superhighway". A further right contained in section 11 of the Berne Convention is that of (ii) "any communication to the public of the performance of their [the authors'] works". It seems that this section could cover the transmission of works via cable if the use of cable entails a communication "to the public". It must be noted that this part of the section only relates to the communication of performances of a work, not of the work itself. What is more, it does not relate to literary works (because obviously those are not works meant to be performed in the way dramatic works are). It is, however, arguable (although no further amplification is provided within the Convention text or the records of the Convention), that the terms of s 11(ii) refer to a performance before the author's public, that is "those who are willing to pay for the benefit of hearing or seeing the work performed. This therefore will exclude only performances in the immediate family circle.": See S Ricketson, above n 52 at 432-433. The latter sentence can only apply to performance "in public" and not really to communication "to the public", since in the latter case the public must be taken not as an assembly of people in one place but the collection of all those willing to pay to see or hear the performance of a work. Hence the question of performance in the family circle is not relevant in the context of s 1, which relates to diffusion to subscribers via a landline of a live or recorded performance. In essence then, although the Convention clearly requires the protection of the right of diffusion via cable, this right relates not to the works themselves but to - for our purpose - recorded performances of such works, ie, to Part IV subject-matter and not Part III works. In other words, the Berne Convention does not require the granting of a right of transmission via cable in primary or Part III works. As far as literary works are concerned,

1995


345

country has yet recommended or completed the introduction of a technology-neutral transmission right. 73 In fact, in the United States a far more careful and piecemeal approach seems to be favoured. 74 Also relevant, and an important factor underlying this debate, is the fact that with evolving technology, the nature of authorship also changes, something to which I have already referred. In the digital environment, where manipulation and re-use of existing works become easier and may be a legitimate form of authorship, any expansion of the rights of the author as creator simultaneously results in a restriction on the creative scope of an author as user. 75 Therefore any expansion in the rights of the author as creator needs to be carefully considered, because it might adversely affect the author as imitator, as user of pre-existing works, either affecting them in economic terms or in terms of creative freedom and acceptable imitation. Maybe, therefore, other solutions to the questions I have posed here lie in a careful analysis of the modem concept of authorship.

CONCLUSION Possibly the main reason why the potential dispute between copyright and freedom of speech has received little or no attention is that the very nature of copyright has been to encourage wide distribution, as this is the way in which the copyright owner will maximise returns: there has been no reason to restrict access to copyright works quite the contrary.76

73 74

75

76

"authors of literary works shall enjoy the exclusive right to authorise both (i) the public recitation of their works, and (ii) any communication to the public of the recitation of their works". Recitation is here seen as the direct performance of a literary work, such as a poem or book reading. Again, this right does not relate to the direct transmission of the literary work itself, as would be possible over cable. For literary works then, the extension of the cable transmission right to the work per se is not required by the Berne Convention. The conclusion is thus the same for all Part III works: the Berne Convention provisions relating to the "communication to the public" right do not require member states to grant copyright owners a cable transmission right. However, for Part IV subject-matter it is required, if it is accepted that sending by cable to a number of individuals, either simultaneously or not, is a public performance. This analysis would conform with my suggested option that the transmission right not be extended to Part III works as such. Note the model adopted by the Copyright, Designs and Patents Act 1988 (UK). Cf lIT, Green Paper, above n 37. The Working Group on Intellectual Property Rights recommended that there should be a distinction between transmission of a reproduction of a work and the transmission of the a performance or display of a work; this is relevant to what I said concerning the Berne Convention, see above n 72. On the nature of authorship, see inter alia M Woodmansee and P Jaszi (eds), The Construction of Authorship, Textual Appropriation in Law and Literature (1994); M Rose, Authors and Owners, The Invention of Copyright (1993) and A Saunders, Authorship and Copyright (1992). For a novel look at the distinct concepts of authorship in copyright and in industrial property rights, see M Franzosi and G de Sanctis, "Moral Rights and New Technology: Are Copyright and Patents Converging?" [1995] 2 EIPR 63. L R Patterson and S W Lindberg, above n 26 at 124: "Another explanation [of why free speech rights questions have received little attention from courts until relatively recently] may be that as long as copyright required publication, the free speech danger it posed was minimal... But with the application of copyright to unpublished materials of modern communication technology, the danger to the free speech right of public access becomes more apparent".

346

Federal Law Review

Volume 23

Where copyright works may be distributed and accessed without any form of reproduction, the copyright owner might logically be motivated to restrict access to safeguard returns. Therefore it must be carefully considered whether granting a right which enables this to occur is in line with the underlying principles and policy aims of copyright law. A transition from a copyright which is based on the restriction of the making of reproductions and which otherwise allows access to and use of information and ideas contained in copyright works, to one in which the copyright owner potentially controls all access to and derivation from a work, is a major change; it edges a little closer to a broad exploitation right over content rather than over the form of copyright works. This is clearly contrary to one of the traditional policy goals of copyright, which is to promote the dissemination and communication of ideas and information. If we are to move from the present legal situation to exclusive rights over information as such, this is a radical change which should be extensively debated, as an issue separate from and greater then copyright; we should not obfuscate and hide such a reversal within the confines of a debate over copyright law reform. To some extent the radical nature of the CLRC reference proposals illustrates that copyright is at a crossroads, and it is appropriate to put the debate over copyright in a broader perspective. It may be that in Australia the threat to free access and free distribution of knowledge, in other words to free communication, no longer lies exclusively in the repressive tendencies of government, but also in the private monopolies of knowledge and ideas. Ongoing commercialisation of information through expanding intellectual property rights (for instance, the granting of an unmodified transmission/ access right) and technological developments, such as encription techniques, enhance this trend. 77 This threat is particularly serious when the ownership of the medium of delivery (the cable network) and of the message delivered (the copyrightable matter) is in the hands of one and the same party. On the other hand, if the present effort at reform is aimed at replacing a technique of piecemeal amendment with a flexible but very broad law which can be left to the judges alone for the next 50 years or so, then it should not be forgotten that other areas of law will evolve and influence copyright simultaneously. Even if the High Court refrains from developing freedom of political communication beyond its present boundaries, some time in the near future a Bill of Rights might add to the Court's armoury. In a society in which the exchange of knowledge and opinion is absolutely fundamental to its functioning and process, reform of the law of copyright which will affect this vital area is a very weighty matter. The nature of basic or human rights may well evolve in a manner which recognises these developments and the modified response they may require. However, the alternative is to recognise that it is a fact of life that copyright law will indeed always require constant up-dating and amendment, and that the solution therefore lies in improving and making law reform more systematic; indeed, this approach has long been supported by one of Australia's leading intellectual property lawyers. 78 A further aim must be to find a balance between flexibility and certainty. An overly broad statute may create excessive 77

78

For a clear and considered treatment of these issues, see P Drahos, "Intellectual Property Law and Basic Science: Extinguishing Prometheus?" in C Arup (ed), Science Law and Society (1992)10 Law in Context Special Issue 56 and also P Drahos,"Information Feudalism in the Information Society" (1995) 11 The Information Society (forthcoming). S Ricketson, "The Future of Australian Intellectual Property Law Reform and Administration" (1990) 1 AIPJ 3.

1995


347

uncertainty and unnecessary costs in the marketplace, and may also lead to a system of copyright which is more administrative than objective in nature - that is, one which is characterised by a lack of control and by administrative determination rather than by private determination of legal positions and relationships.79

79

For an example of this process at work in the area of industrial property, see C Arup, Innovation Policy and the Law (1993).