It has been a busy time lately in the law of copyright. The Courts have handed down a number of decisions including judgments in relation to two long running and expensive chapters in the battle by the recording industry against on-line piracy. There have also been a number of legislative amendments and Government reviews in relation to the Copyright Act.
Set out below are some of the highlights.
Amendments to the Copyright Act
On 1 January 2005 amendments to the Copyright Act were designed to support the implementation of the Australia-US Free Trade Agreement (AUSFTA). These were the subject matter of an earlier article in the 2005 April edition of Legal Talk.
On 8 November 2005, the Copyright Amendment (Film Directors Rights) Act received Royal Assent. It is due to commence on 8 May 2006. The amendments give film directors the right to include the film in a retransmission of a free to air broadcast.
Furthermore, the Attorney-General is currently conducting an enquiry in relation to fair dealing. The current fair dealing statutory regime provides a defence, for conduct which would otherwise constitute infringement, for various purposes including research or study, criticism or review or reporting news. This is in contrast to the US position which does not identify a list of permitted purposes but rather has a more open ended or general test.
The Government is, in particular, considering whether new exceptions to copyright infringement will be needed to exclude such activity as “time shifting" (for example, taping a television show to watch at a later date) and “format shifting" (or “space shifting") where material is copied from one medium to another (for example, recording a CD onto an iPod).
Over 160 submissions were made to the Attorney-General’s department in relation to these issues.
The Attorney-General has also been conducting reviews on a number of other issues concerning the Copyright Act, in addition to the fair dealing provisions, including reviews on:
- the one per cent cap on royalties paid by radio broadcasters for playing sound recordings
- criminalising unauthorised use of pay TV broadcasts
- whether the criminal offences need to be updated to make them consistent with the criminal code
- whether the scheme for limitation of remedies available against internet carriage service providers should have a greater scope.
The Government has recently announced its plans to introduce the Copyright Amendment (Exceptions, Enforcement and Other Measures) Bill and the Copyright Amendment (Indigenous Communal Moral Rights) Bill into Parliament’s autumn sittings. The first Bill deals with reforms to the Copyright Tribunal and implements outcomes of various recent government reviews.
Judicial decisions
The last twelve months or so has seen a number of high profile judgments being handed down dealing with copyright issues. Some of the highlights are set out below.
(a) Computer Games
The High Court has now considered the meaning of a “technological protection measure."
Pursuant to the Copyright Act, if a copyrighted work or other subject matter is protected by a “technological protection measure" then a person who, without authority, makes, sells or offers for sale or advertises a “circumvention device" which is capable of circumventing or facilitating the circumvention of that “technological protection measure", will engage in conduct proscribed by Section 116A of the Copyright Act.
Thus, in Stevens the issue was whether that part of the software in question which recognises a particular access code, or the access code itself, constituted a technological protection measure pursuant to the Copyright Act.
The High Court took a relatively narrow construction of the Legislation and determined that a key feature of a technological protection measure is that the device or product prevents or inhibits copyright infringement. A device/access code which prevents access only after the copyright infringement (ie the unauthorised reproduction of the game) has taken place is not a technological protection measure.
The Government has recently under-taken a review of the technological protection measures provisions of the Copyright Act in light of Australia’s obligations under the AUSFTA. One of the requirements of the AUSFTA is for there to be sanctions against the supply of devices which circumvent technological protection measures that control access, whether or not that access control is for the purposes of inhibiting or preventing infringement. It may therefore be the case that the
High Court’s definition is affected by changes to the Copyright Act.
(b) Architect’s drawings
The Full Court of the Federal Court has considered in Parramatta Design and Developments v Concrete Pty Limited the issue of the extent to which a licence may be implied to the copyright in architect’s drawings.
An architect had prepared drawings for a 14 unit property development, commissioned by the owners of the land on which the development was intended to take place. The architect was part owner of a second company which intended (with another company) to develop the land. The architect charged no fees for the drawing but had received payment for earlier drawings for a more limited project. The joint venture failed and the land was then sold to the respondent, Concrete Pty Limited, which wished to use the architect’s plans without permission. The Full Court determined that the vendor of the land did not purport to assign any licence in the drawings to the purchaser. Clearly, in order to construct the 14 unit development in accordance using the plans without permission would, in the absence of an implied licence, constitute copyright infringement.
It is well known that an architect who is paid for his (or her) work impliedly licences the client to use the plans for the purpose for which they are prepared, usually for the construction of the building, even after the architect’s engagement is terminated. This is of course subject to the express terms of the contract as well as the surrounding circumstances of each case. The Court, at first instance, had concluded in favour of the new land owner, indicating that an architect implicitly licences any entity which comes to own the land to use the plans. The Full Court on appeal disagreed with this conclusion in these circumstances, particularly as the architect had not been paid for the drawings in question. The general principles dealing with implied terms and architect’s drawings therefore need to be considered in light of the particular circumstances.
(c) The recording industry and the internet
Other notable cases to be the subject of judgments in the last twelve months involve the long awaited claims by the recording industry against on-line piracy in the Federal Court.
In Cooper, Mr Cooper was the registered owner of the domain name/website mp3s4free.net. The purpose of the website was to enable users to download MP3 music by way of hyperlinks on the website to remote websites on which musical files were stored. The musical files were not sent to or downloaded on the Cooper website but were sent directly to users.
Notably, the internet service providers (“ISPs") hosting the website were also included as respondents in the proceedings.
Although the Applicant did not succeed in every argument, the Court did find that both Cooper and the ISPs infringed the recording companies’ copyright in various sound recordings through the operation of the site. In particular, liability was found on the basis that both Mr Cooper and the ISPs “authorised" infringement of copyright.
Whilst the findings against Mr Cooper are not surprising, the findings against the ISPs were an important feature of the judgment. The ISPs hosted over 2,000 websites in addition to the Cooper website. However, the Court found that the ISPs had an arrangement with Mr Cooper whereby the ISPs would advertise on the Cooper website and the Cooper website was among the top 30 per cent of websites in terms of traffic generated. Ultimately the Court decided that the ISPs were responsible for hosting the website and providing the necessary connection to the internet and therefore had the power to prevent the doing of the infringing acts.
The initial hearing of this case took place before the “safe harbour" provisions of the Copyright Act came into effect on 1 January 2005. The purpose of the safe harbour provisions is to limit the liability of ISPs. The Court rejected an argument that these provisions operated retrospectively. The Court further decided, that in any event, the ISPs were not entitled to the protection of the amendments (even if they were applicable). This is because they were aware that copyright material was likely to be infringed and had failed to take any steps to implement a policy for the termination, in appropriate circumstances, of the accounts of repeat infringers the “safe harbour" amendments also required the ISPs not to receive a direct financial benefit from the infringing activity. Here, the ISPs had obtained free advertising on the website.
In the Kazaa case the Court dealt with the Kazaa internet peer to peer file sharing system.
The Kazaa system was available to users free of charge and enabled one user to share material stored in a particular file known as “My Shared Folder." Any user who was interested in obtaining a copy of a particular work could, by using the Kazaa software, search for that material stored in “My Shared Folder" of other users worldwide. Once found, that particular work was transmitted to the users own computer.
Again, although not successful on all grounds, the recording companies were successful in claiming that the people associated with the Kazaa software had authorised others, namely users, to infringe copyright in sound recordings.
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