AARL

The Making of Copyright Law: Notes from an Australian Perspective

Tom Cochrane

Abstract: Copyright law has become a more central concern in recent years. Australian law, having developed from its Anglo-Saxon roots, has been updated in accordance with international treaty obligations and changes described as the 'Digital Agenda'. This article generally describes the processes used and describes different ways of law making. It attributes significant appropriate influence to the library perspective in the present result in Australia.

Understanding and dealing with the law of copyright is not a popular pastime. It has this in common with other aspects of commercial property and trade law, but it is, of course, a matter of greatly increasing interest in the library profession. At the 2002 meeting of the International Federation of Library Associations (IFLA), for example, it was quite noticeable that sessions on copyright matters attracted very large attendance, somewhat to the surprise of organisers whose expectations were low based on previous experience with this theme.

The reason for this is, of course, the extraordinary importance and complexity of issues that have been revealed by the advent of the digital age, and which continue to excite commentary from a range of interests, by no means confined to lawmakers. As Pamela Samuelson (the well known US academic and copyright commentator) remarked at the 2002 WWW conference, '... one reason why a new politics of intellectual property is necessary is that copyright now affects everyone'. [1]

This contribution considers the general principle of copyright law initially, comments on the mechanism which has developed in Australia for the review and development of change in the law before the digital age, and then reviews what has happened in the light of what has come to be known in this context as 'the digital agenda'. In doing so the broad social principles underlying copyright, together with the development of the importance of international law treaty obligations comprise significant elements in the picture.

The context for Australian Copyright Law

The law with which libraries must grapple and help to interpret in the early 21st century comes from the broad western tradition of establishing a principle of ownership and property rights in relation to an original work of authorship, creation, composition, etc. This western tradition has two component legal traditions comprising an essentially European (civil law regime approach, now governed by the EU treaty making context), and the Anglo-Saxon (common law) regimes.

The first known copyright statute was indeed passed in England in the early eighteenth century and stated in part that its purpose was to encourage learning. The matter received substantial attention in the framing of the Constitution of the United States some seventy years later where the now well known statement of purpose indicated that the Congress:

shall have the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. [2]

The laws which came to exist in Australia were essentially derived from English law, but have in matters of significant detail become differentiated from current British law in a number of ways. The essential points of agreement however, which are also enshrined in international discussion of copyright and intellectual property, are that an author or creator has an exclusive right which is however subject to limitations and exceptions.

It is of particular interest to consider how these limitations and exceptions came to be defined and to trace what has happened to them. In the case of the US Constitution, for example, it was plainly envisaged that the exclusive right not operate after the passage of a certain amount of time. Initially that time was 14 years. The term is now 70 years. There is current debate in the United States concerning the extent to which the original intention of the 'Founding Fathers' has been confounded by a virtually continual pattern of seeking extensions of the time during which the exclusive right is to operate. It seems clear that initially the period of time was that which was deemed reasonable for the author to generate a means of income from the work. Provision was made for the time to be renewable. The term has become, over the last two hundred years, more than five times as long.

In addition to intended limitations such as periods of times, have been exceptions for certain purposes. The most significant extensions in the Anglo-Saxon tradition are described by the concept of 'fair use' (United States), or 'fair dealing' (Australia, UK and others). The ability to copy work is limited by the exclusive right of the author, except where provided for as a 'fair dealing'.

The copyright regimes that have developed have generally been about furthering the public good through a balance-of-interest process. On the one hand the interest of society is enhanced by guaranteeing to authors exclusive rights or monopolies which will encourage them to create further works, and therefore to advance understanding, knowledge, cultural development, etc. However, it is also recognised that these benefits need to be guaranteed through the provision of access, so the notion of limitations to the exercise of monopoly is a very old one. It is after all only when knowledge is learned, discussed and added to by other members of society that its value is truly appreciated and the worth of the creation in the first place truly understood. Creation needs use to be valued. Works need access to have meaning.

The inherent slowness in law making

The making of laws relating to copyright shares with the making of laws affecting almost everything else, an inherent slowness. That is, the subject matter of any particular law is necessarily the result of sets of actions and circumstances in human society which have pre-existed the actual act of making the law, and are deemed of sufficient concern or importance to warrant the making of such a law. Thus, acts of murder or theft existed many years before any written law which sought to affect their allowability or 'lawfulness' and to articulate sanctions to inhibit their occurrence. Of course, law making is also the means by which authorities have sought to establish and maintain power and social order.

Law making therefore necessarily comes after a set of circumstances has developed. In the 20thcentury in the case of copyright, it can be seen that changes to the law have been made as a result of changed circumstances relating to techniques of reproduction and copying. And, of course, the changes that have been made in this regard during the 20th century have been world changing and spread across the reproduction of all forms of expression, including music, visual works, and of major concern to libraries in addition to these two, text.

Kinds of law making

There are any number of ways a social problem or issue can give rise to the making of laws. There are many examples in politics and international affairs where laws are made extremely rapidly in order to deal with an unpredicted circumstance such as an outbreak of war, or civil disorder or attack. In the realm of copyright at least two general forms of law making can be seen in Australia in the last half century. In one, the Government becomes aware of a set of developing issues and sets up a mechanism to consider how the law might be adjusted, amended to take account appropriately of new circumstances. In the other, a specific action may stimulate a reaction which includes a legislative response. Both of these have taken place in Australia. However, in the case of copyright law it is also important to understand the international context.

International treaty obligations

Following Australia's foundation in 1901, its role in international affairs and activities has grown. This has included being party to international treaties on a range of issues, including those to do with intellectual property. Through the twentieth century there have been a number of treaties relevant to copyright to which Australian has become a signatory, and which have therefore required Australian legislative action. Most recently this has included the example of the so called 'Internet Treaties' which were concluded under the auspices of WIPO (The World Intellectual Property Organisation) in Geneva in December 1996. Australia was the second 'western' nation to legislate in accordance with these treaties (2000) after the United States in 1998 (The Digital Millennium Copyright Act). [3]

Thus, Australia can be seen, as in other arenas, to be a responsive player in the area of national response to international treaty developments. In so doing it has sought to carry forward into the digital environment the existing understandings about exceptions based on the 'three-step test' as outlined in the TRIPS agreement. This agreement[4] provides that member states should see that limitations or exceptions are confined to 'certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder'. [5]

Reactive law making

It was stated earlier that there are generally two ways in which the Australian government develops the law of copyright, one being a considered process and the other a more reactive. The best example affecting the library world of the reactive mode of law making concerned events which took place in Sydney at the University of New South Wales in the late 1960s. The Australian author Frank Moorhouse took legal action against the University after copying one of his works on a library supplied photocopying machine. The subsequent legal case and activities of legal review led to changes in the Copyright Act which were intended to protect authors and creators in the light of the growth of widely accessible, self managed reprographic facilities, in other words photocopying machines.

Photocopying technology developed rapidly in the 1960s and 70s and became a major convenience for both administrative and educational purposes. Most universities came to rely on the ability of photocopiers and heavy student reliance on them was being reported soon after their establishment in self-service facilities.

Moorhouse sought to show how easy it was with these sorts of facilities to infringe the existing law of copyright, and the case was mounted on behalf of authors that stronger protection was needed. When the Copyright Act was amended some years later it brought with it the requirement to have stricter controls surrounding the availability of photocopying machines, and included sanctions against those who were in charge of institutions where infringement might occur. Those who were responsible for the provision of library services as the new Act was proclaimed were much exercised by these new provisions, and the library world in general became much more aware of the need to protect the interests of authors and publishers. In this way library staff in locations where library services involved photocopying, whether in public libraries or university libraries, etc., came to act to some degree as sentinels on behalf of authors and creators of works.

It can be seen that the amendments that were made were precipitated by a specific action, and that, if nothing else, Frank Moorhouse's action assisted in focussing on the issue. It can also be seen that this law making occurred after a technology had developed which allowed much easier copying than had previously been available.

In the same way the advent of readily available technologies through cassette audio tapes, and later video recording have exercised law makers and regulators. When the manufacturer Sony first sought to make video recording technology available as VCRs sold into the mass market in the United States, a law suit was taken out to prevent the sale of the devices (commonly known as Sony v Betamax). The fact that this seems strange or remarkable on reflection, is a measure of the range of attitude and responses that develop around copyright issues.

The Copyright Law Review committee

Established in 1983 (about two years after the amendment to the Copyright Act), the Copyright Law Review Committee was established to provide advice to the Attorney General on changes which might need consideration in the law of copyright as circumstances developed in Australia. Chaired by an eminent member of the legal profession (there have been four Chairs since its inception), the Committee has been characterised by a small membership of people appointed by virtue of their expertise in a number of fields. The Committee has normally had a particular matter of law or set of issues referred to it as a 'reference', usually called for public submissions on the question, and drafted and developed a report on the subject matter concerned for submission to the Attorney General. This process has usually occurred within a particular time frame, although in one particularly attenuated example (to do with computer software) the time frame was lengthy. As some of the issues connected with copyright law reform have assumed greater importance, the complexity of the Committee's tasks, and the strength of view submitted to it in public submission have increased. In general terms the social issues which copyright law in the first place sought to mediate, are also reflected in the process of public submission, and inevitably in the differing perspectives of the members of even quite a small group.

One of the options available to a committee such as this is to provide a report with minority dissenting views expressed within it. This indeed occurred in the case where the Committee reported on its reference to consider ways in which the Copyright Act might be simplified (the 'simplification reference'), though not with its most recent reference on copyright and contract.

The making of the current Australian Law, Copyright and the Digital Agenda

In the case of its major reforms leading to the Copyright Amendment (Digital Agenda) Act 2000, the Government used a much wider process than that implied by referring to a specialist committee for advice. It commenced with the announcement on 30 April 1998 that Cabinet had decided to implement reforms to the Copyright Act which would be described as 'Digital Agenda' Reforms. They were proposed to align copyright legislation in Australia with the digital environment and in compliance with Australia's obligations with reference to the international treaties concluded some eighteen months before in Geneva. So, although Australia was not the first country to enact national legislation after Geneva, it was not slow to get the process of consideration maturing.

The first major step was the release in February 1999 of an exposure draft of a 'Digital Agenda' Bill. The Government stated at the time that

the central aim of the reforms is to ensure that copyright law continues to promote creative endeavour whilst allowing reasonable access to copyright material on the Internet and through new communications technology. [6]

The exposure draft called for public comment from all interested parties. The Australian Digital Alliance (formed in mid 1998 with significant support from the education and library sector) and, of course, the Australian Libraries Copyright Committee, took advantage of this invitation to develop clear statements and lines of argument about the direction of reform. That these were noted, and what is more noticed, became clear in the ensuing months.

Following this process of public consultation the Government introduced the Bill into Parliament in September 1999 where it was immediately referred to the Legal and Constitutional Affairs Committee of the House of Representatives. This committee then initiated its own process of public consultation, including hearings in Parliament with interested parties in attendance.

In due course the Legal and Constitutional Affairs Committee provided an advisory report on the Copyright Amendment Bill, which left a small window of opportunity for further public comment. The Australian Libraries Copyright Committee provided its comment, for example, in January 2000.

In fact what happened over the twelve to fifteen months following the release of the exposure draft in February 1999 was intense lobbying by various copyright interests that were dissatisfied with some of the Government's announced intentions. While this lobbying was in most cases predictable, and in many understandable, it also had a number of features which were of concern to those with responsibility for libraries. This included significant targeting of libraries as institutions undermining the proper uses of copyright, and the claim that they were involved in their own publishing activities as rivals to the publishing industry.

By and large, however, the Government stuck more or less to the course which it marked out when it said that it intended to maintain the balance in the digital age. It did this through a process of significant lobbying and public consultation, and this in itself was an interesting dynamic in terms of law making, and to be contrasted with some other approaches in legal reform.

Further to this, when the Act was passed the Government announced its intention to review its operation in three years time, with a presumed willingness to make consequential further changes in response to any significant advice to do so. The library community needs to make the appropriate submissions on this at the allotted time.

During this process a new issue emerged. This was the question of the extent of the effectiveness of its legislative amendments in a world where the use of contract for the use of copyright material is growing so rapidly. Accordingly, the Government developed a further reference on the particular topic, and referred that in turn to the Copyright Law Review Committee for advice. That advice was duly framed and sent to the Attorney General by April 2002 with the resulting report being released a few months later. [7]

Conclusion

The field of copyright law has changed for the reasons outlined by Pamela Samuelson. It is dynamic and concerns everyone. The amount of Government activity in the area has increased. The pace of legislation and legislative amendment way well increase, at least for a while. Thus in Australia within months of the enactment of the most significant changes for over a generation, there was already further detailed work being carried out on the related issue of legislation and contracts.

This contribution has discussed a number of techniques that have been used in the process of law making in Australian Copyright Law. These vary from reactive process to specific events, to more considered legislation, often initiated by our obligations in relation to international treaties, but with a specific and particularly Australian interpretation and way of proceeding. The decision by Australian libraries collectively to invest more in the process of seeking to influence the making of these laws, and in particular to struggle to maintain the concept of balance in copyright legal drafting was far sighted. Submissions to the processes calling for advice have been absolutely necessary, often provided detail that would otherwise be absent, and have no doubt influenced the outcome.

Notes

1. P Samuelson 'Toward a New Politics of Intellectual Property' WWW 2002 conference (essay) p1 http://www.sims.berkeley.edu/~pam/papers/CACMNewPolitics3.pdf
2. As cited in J Litman 'Digital Copyright' Prometheus Amherst 2001 p1
3. At time of writing, for example, Canada and New Zealand have yet to finalise legislation, and in Europe various national legislatures are still in the process of harmonising national law to the European Copyright Directive.
4. The Agreement on Trade-Related Aspects of Intellectual Property Rights
5. As cited in Commonwealth of Australia Copyright Law Review Committee Copyright and Contract Canberra 2001 p17
6. Commonwealth of Australia Exposure Draft and Commentary - Copyright Amendment (Digital Agenda) Bill 1999 p3
7. See reference in note 5

Tom Cochrane, pro-vice-chancellor (Information and Academic Services), Queensland University of Technology. E-mail: t.cochrane@qut.edu.au.nospam (please remove the '.nospam' from the address).