The information in this overview is of a general nature and accordingly many issues have been simplified. Expert advice should be sought prior to relying on or applying this information to specific circumstances.
Copyright protects the investment of time, money and effort by individual creators (eg authors, composers and performers) and related businesses by granting those individuals and businesses certain exclusive rights in the things they create. This overview summarises the main features and general principles of Australian copyright law, particularly as it relates to the creation and exploitation of digital multimedia recordings of the live performing arts. The aim is to provide reasonably simple answers to the following questions:
1. What different types of material does copyright protect?
1.1 The Australian Copyright Act 1982 protects a number of different types of copyright, each of which is concerned with a different creative contribution. Broadly speaking, these copyrights can be divided into two groups. Copyright in 'works' protects the interests of individual creators such as authors, poets, composers, artists and photographers, and copyright in 'subject matter other than works' protects the interests of the copyright industries such as the motion picture, recording, broadcasting and publishing industries. Although rights in relation to 'other' subject matter are often referred to as 'neighbouring rights' in Europe, all rights are treated as 'copyright' under Australian law.
1.2 The works protected by copyright are:
- literary works, which include books, articles, poems, tables, compilations and computer programs;
- dramatic works, which include choreography, plays, screenplays and song lyrics;
- musical works, which include musical scores and compositions; and
- artistic works, which include paintings, drawings, photographs and designs.
1.3 The'other' subject matterprotected by copyright are:
- cinematograph films, which include films, videos and some computer games;
- sound recordings, for example, audio recordings embodied on tapes, compact discs and similar media;
- sound and television broadcasts, where the broadcast consists of electromagnetic signals transmitted 'across the airwaves' (ie not by wire or cable); and
- published editions, which is concerned with the protection of the typographical layout of particular publications of works, for example, an edition of a novel.
1.4 Another creative contribution which may soon be protected by copyright is that of the performer. Historically, although writers and composers have enjoyed strong copyright protection for their works, the level of protection afforded to performers of those works has been relatively weak. However, in recent years Australian performers have been given some rights to control unauthorised use of their performances, and it is increasingly likely that stronger, copyright-style protection of performances will soon be recognised as part of Australian copyright law. Recent international and Australian developments in relation to performers' copyright are discussed in more detail below.
1.5 In any given creative product there can be many different layers of copyright protection. A music compact disc, for example, is likely to incorporate reproductions of a number of different musical works (music), dramatic works (song lyrics), sound recordings and performances. A multimedia product, on the other hand, could contain hundreds of different copyrights, including literary works (text, software and the overall compilation of materials), artistic works (photographs, drawings and other still images), musical works (music), dramatic works (scripts and lyrics), sound recordings (recorded music clips), cinematograph films (animation, film and video clips) and performances. Identifying and managing each of these many copyright layers is no easy task.
2. What are the rights of a copyright owner?
2.1 For any given type of copyright, ownership means having the exclusive right (ie the right to the exclusion of all others) to do some or all of the following things in relation to the work (or other subject matter):
- to reproduce or copy the work
- to perform the work in public
- to broadcast the work
- to transmit the work by cable to subscribers
- to adapt the work
- to rent the work (computer programs and sound recordings only).
2.2 Although the copyright owner's 'bundle' of exclusive rights and the manner in which those rights are defined are subject to some variations, the right to make copies is always protected. In the digital environment, however, there is some uncertainty as to whether all electronic copies fall within the scope of the reproduction right. Works held only briefly in the random access memory of a PC and works displayed temporarily on a computer screen may not always be considered to be reproductions in a material form, as required under the Copyright Act. The status of temporary copies will be clarified under the proposed Digital Agenda amendments to the copyright legislation.
2.3 The rapid growth of the Internet and online services has also raised the wider question whether the current bundle of exclusive rights is broad or effective enough to enable copyright owners to control all economically significant uses of their works. Copyright does not give its owner control over any 'use' that falls outside the scope of the exclusive rights. Thus, anyone is free to use copyright material in ways that do not infringe any of the protected rights.
2.4 Consider, for example, the situation where someone connects a computer loaded with copyright materials to the Internet. Simply by establishing the connection, that person could make hundreds or thousands of works available online for anyone to download and copy on demand. Although the act of connecting the computer to the network does not, of itself, involve copying, broadcasting, public performance or use of other protected rights, it does expose copyright owners to the risk of substantial losses through the infringing conduct of those who might subsequently access and copy the works. To address these and other weaknesses in the scope of copyright protection, new and broader exclusive rights have recently been added to international copyright law treaties. Likely changes to Australian law which incorporate standards in these new treaties are discussed below.
2.5 The following table helps to summarise the types of copyright and the rights protected as the law currently stands:
Y indicates the right is protected
N indicates the right is not protected
|Exclusive rights in different copyright materials
||Literary, dramatic & musical works
||Cinemato- graph films
||Television & sound broadcasts
|To make a reproduction or copy
|To perform in public
|To transmit by cable to subscribers
|To make an adaptation
|To enter into a commercial rental arrangement
Works stored on sound recordings & computer programs only
|To do any of the above in relation to an adaptation
3. How do moral rights differ from economic rights in a work?
3.1 In addition to the exclusive 'economic rights' set out above, Australian copyright law may soon also protect the 'moral rights' of individual creators to:
- be identified as the creator of their work (the right of attribution); and
- object to any derogatory treatment of their work which is prejudicial to their honour or reputation (the right of integrity).
3.2 The rationale for moral rights protection is that a creator's work is an extension of his or her reputation and personality and, as such, should remain subject to his or her control, at least to a limited extent, even after the copyright in that work (ie the exclusive economic rights) has been sold to another person. Under draft laws currently being considered by the Government, it is proposed to grant to all creators of works (eg authors, composers, artists) and films (ie directors and producers) the moral rights of attribution and integrity.
3.3 If moral rights are introduced, users of copyright will need to take extra care to identify the creator and not to use works in a manner that could be considered derogatory (eg by distorting, manipulating or mutilating the work). It will, however, be possible for users to argue that a failure to identify a creator or a derogatory treatment of a work was reasonable in the circumstances (eg a harmless parody). Some users might also seek a waiver of moral rights from relevant creators to eliminate the risk of future disputes.
3.4 Since the initial introduction of the proposed moral rights legislation there has been debate as to whether or not the legislation should have provision for a waiver and, if so, whether this could be granted before a work or film was commenced. Some groups assert that the possibility of such an upfront waiver would lead to creators being forced to always waive their rights, making the legislation worthless. Others in the industry argue that the absence of an upfront waiver would make the provision difficult to apply in practice having regard to industry arrangements. The proposed legislation was withdrawn in July 1998 to allow for further consultation with relevant interests, in order to ensure that the resulting regime of moral rights best meets the needs of all interested parties. The issue is still under consideration by Government.
3.5 Moral rights are likely to assume particular significance for works and performances incorporated into interactive multimedia products. Many interactive products give the end-user power to direct and manipulate the way the product is viewed and experienced. A product could, for example, permit the user to direct the movement of a performer on screen or to rearrange a piece of music. When creating interactive multimedia products, therefore, care must be taken to ensure that all moral rights holders are aware of these possibilities and to confirm that interactive features will not be considered to be an infringement of moral rights. Failure to manage these issues early in a multimedia project will increase the risk of disputes as the project evolves.
4. Who owns copyright?
4.1 For creators and users alike, it is important to know who owns copyright in any given situation. A multimedia producer, for example, will need to know whether it automatically owns new materials created for it by staff and other contributors or whether a specific licence or assignment of rights must be entered into. Similarly, when a producer is using existing third party material, it must take care to acquire the rights to that material from the true owner of those rights. There is no point seeking an assignment or licence from the creator of a work if the copyright in that work is actually owned by his or her employer.
4.2 The general rule is that copyright is owned by the author of a work, or the maker of any other subject matter (film, recording, etc). There are, however, some exceptions to this rule.
4.3. Copyright created by employees as part of their employment will automatically be owned by their employer. Thus, the work of employee scriptwriters, designers, illustrators, composers and programmers is, from the moment of its creation, owned by the person who employed them to produce that work. Employed newspaper and magazine journalists, however, have a 'split' copyright ownership with their publisher employers. This 'split' of rights was recently changed as part of the Copyright Amendment Act (No 1) 1998. Publishers will now own the digital/electronic copying rights and employee journalists will retain ownership of photocopying and book publishing rights.
4.4 If a work is created by an independent contractor (rather than an employee), the copyright in that work is owned by the contractor, not the person who commissions the work. A written and signed assignment of copyright is generally required to transfer copyright ownership from an independent contractor to the client for whom they did the work. The distinction between employees and independent contractors is accordingly quite significant for copyright ownership purposes. A person is likely to be regarded as an employee where the 'employer' exercises a high degree of direction or control over the manner in which the work is performed. Any person forming an integral part of the operations of an organisation is also more likely to be regarded as an employee. However, if there is an agreement between two parties stating that their relationship is an independent contractor relationship rather than an employment relationship, that agreement will usually be respected (at least for the purpose of determining copyright ownership), regardless of the degree of integration or control.
4.5 Prior to the enactment of the Copyright Amendment Act (No 1) 1998, independent photographers were in the anomalous position that, even though they were not employees, the copyright in photographs commissioned from them was automatically owned by the commissioning client. This has now changed, such that copyright in commissioned photographs remains with the photographer, except in relation to photographs commissioned for domestic or household use (in which case copyright still vests automatically in the client). Thus, anyone who commissions photographs for commercial purposes must now obtain an express transfer of copyright from the photographer if they wish to own the copyright. Otherwise, the photograph can only be used for purposes agreed (expressly or by implication) with the photographer.
4.6 If more than one person makes a substantial creative contribution to the creation of a work, each of them will be regarded as joint authors and owners of the work (assuming that ownership is not affected by an employment relationship). Unless otherwise agreed, they will be presumed to own equal shares in any copyright they jointly create.
4.7 Whatever the position under the Act, copyright ownership can always be changed by agreement. As long as the agreement is in writing and signed by the relevant copyright owners, any person can be given ownership over all or any part of any copyright. Indeed, ownership can be divided amongst different parties in different territories, at different times, in relation to different rights and in many other ways. For example, a multimedia producer could enter into an agreement to acquire ownership of copyright in a work, but only as that copyright relates to use in an interactive multimedia product, in certain agreed countries and for an agreed period of time.
5. When does copyright protection come into effect?
Registration and the copyright symbol
5.1 Under Australian law, copyright protection applies automatically to original works from the moment those works are first fixed in a material form. There is no need to register a copyright for protection to exist.
5.2 There is also no need for a work to be marked with the © symbol or any other form of copyright notice. Although formal requirements such as these may once have applied in some countries, they have very limited application around the world today. Nonetheless, it is a common and sensible practice to include with all published copyright material the © symbol, the year of first publication and the copyright owner's name as a practical way of reminding users that a work is protected by copyright.
Originality and material form
5.3 The main requirements for copyright protection in Australia are that a work is:
- original; and
- fixed in a material form.
5.4 A work will be 'original' if it results from the application of skill and labour by an individual creator. There is little, if any, need for artistic or creative merit. What matters is that the work was not copied from somebody else. In other words, an 'original' work must originate from the person claiming to be its author.
5.5 A work must also be fixed in a material form for copyright to exist. In the case of most works, this will occur when the work is first written down on paper, saved to disk or recorded on tape. Impromptu oral speeches and improvised music or choreography will thus not enjoy copyright protection until such time as they are written down or recorded in a material form. Accordingly, many dance and theatre companies record their rehearsals on video, thus ensuring copyright protection for their work as it evolves.
5.6 The Copyright Act now defines 'material form' broadly so as to include 'any form (whether visible or not) of storage from which the work or adaptation ... can be reproduced'. Works recorded on magnetic tape, CDs and computer disks are thus regarded as fixed in material form.
Connection with Australia or Berne Convention Country
5.7 Another requirement for protection under Australian copyright law is that a work has the requisite connection with Australia or another Berne Convention2 member country. Generally, if a work is created by a national or resident of Australia (or a Berne member country) or is first published in Australia (or a Berne member country), it will be protected under Australian copyright law. Films and sound recordings made in Australia are also protected under Australian copyright law. These general rules can vary for older materials and for certain types of materials.
6. How long does copyright last?
6.1 Copyright in works generally lasts until 50 years after the end of the year of the author's death. For works first published after the author's death, however, copyright protection is extended to 50 years after the year of first publication. Where multiple authors created a work, the relevant year of death is that of the last joint author to die.
6.2 Photographs are a special case. If a photograph was taken before May 1969 it will be protected until 50 years after the year of taking. If taken during or after May 1969, protection will continue until 50 years after the year of first publication.
6.3 The duration of copyright in sound recordings is essentially the same as the duration for photographs. Broadcasts are protected for 50 years after the year of making the broadcast and films are protected for 50 years after the year of first publication of the film.
6.4 Protection of published editions is more short lived. In this case, copyright lasts only 25 years after first publication.
7. What is not protected by copyright?
7.1 It is a basic principle of copyright law that copyright does not protect ideas and information, it merely protects the form in which those ideas and that information are expressed. Indeed, international copyright treaties state that 'copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such'. To protect novel and inventive ideas, concepts and systems one needs to keep them secret, impose contractual restrictions or apply for registration of a patent.
7.2 The principle that copyright does not protect ideas should, however, be applied with care. Some ideas, for example, may be described and structured in such detail that a court is prepared to treat that description as protected expression. The plot or idea for a film could possibly attract some copyright protection if expressed in a sufficiently original and substantial manner.
7.3 Copyright is unlikely to protect single words or short slogans and phrases. They are generally considered too insubstantial and lacking sufficient originality of expression to be considered 'works'. Words and slogans are best protected using the trade-mark registration system and laws concerned with 'passing off' and misleading conduct, which offer a different type of intellectual property protection. Well known examples are 'Just do it' (Nike) and 'Always Coca-Cola'.
7.4 As mentioned above, copyright does not protect any material from use which falls outside the scope of the copyright owner's exclusive rights. Thus, for example, it is not an infringement of copyright to rent a film as the rental right applies only to sound recordings and computer programs. To overcome gaps in copyright protection such as this, many copyright owners will 'top up' their level of protection by placing extra restrictions on use in contracts with their customers. Contractual agreements can be used to add to or vary copyright protection whenever there is a contractual relationship between the copyright owner and the user. Without an effective contractual link, however, these attempts to 'top up' copyright protection are unlikely to succeed.
8. When is use of copyright an infringement?
8.1 It is an infringement of copyright to use all or a substantial part of a work or other subject matter unless you have the permission of the copyright owner or a defence or exception applies.
8.2 A person does not have to use all of a work for infringement to occur. Unauthorised use of a 'substantial part' will suffice. In this context, substantiality is judged by reference to the quality and creative significance of the part used when considered in relation to the whole work. Thus, a part can be substantial even though it is not large in a quantitative or proportional sense. Indeed, a relatively small part of a work may nonetheless be considered a substantial part.
8.3 Substantiality should not be confused with the question whether the part used is a 'reasonable portion' for fair dealing purposes (see below). For copyright purposes, a 'substantial part' is always smaller than a 'reasonable portion'.
8.4 It can also be an infringement to authorise the use of a work without the copyright owner's permission. For example, a person who sets up a Website that invites users to download another person's copyright material without permission is at risk of liability for authorising any infringing copies made by users who access the site. Thus, apart from any liability for making an infringing copy on the Website in the first place, the owner of the site may be liable for authorising the copies made by other users. Anyone who 'sanctions, approves or countenances' an infringement will be considered to have 'authorised' that infringement.
9. When might fair dealing and other exceptions apply?
9.1 In certain circumstances, the Copyright Act recognises that there is a public interest in allowing some people to use copyright material without seeking permission from copyright owners or their representatives. In those circumstances, although the use in question would normally be regarded as an infringement, the Act sets out a defence or exception that deems that use not to be an infringement.
9.2 The best known defence to copyright infringement is fair dealing (known as 'fair use' in the United States). The fair dealing provisions permit free use of copyright material in a number of situations. To succeed, a person seeking to rely on a fair dealing defence must first show that he or she had acted with at least one of the following purposes:
- research or study
- criticism or review
- reporting the news
- giving legal advice; and
- participating in judicial proceedings.
9.3 If the dealing does not fall within one of these purposes, the defence will fail. If it does, the fairness of the dealing must then be considered. For researchers and students copying from printed works (ie for the purpose of research or study), there are clear guidelines that deem the copying of 10% or one chapter of a book, or a single article from an issue of a journal, to be fair. In other cases, fairness is judged by reference to factors such as:
- the purpose and character of the dealing;
- the nature of the material;
- the effect on the market for the material;
- the commercial availability of the material; and
- the amount and substantiality of the part used.
9.4 The line between fair dealing and infringement can be very difficult to draw. As an English Judge once explained, 'when all is said and done, it must be a matter of impression'. Perhaps the most likely circumstance in which fair dealing may permit the free use of copyright material in a multimedia product is where a small amount of a work is used for the purpose of criticism or review. Provided that a 'sufficient acknowledgement' is made, a fair amount of a work can be copied for the purpose of criticising or reviewing the work and its subject matter. However, given the uncertain scope of the defence, it is sensible to err on the side of caution if doubts exist as to the 'fairness' of a particular dealing.
9.5 It is important to remember that, if the purpose requirement is not satisfied, the defence will offer no protection to a user. This position differs significantly from the position in the United States, where the broader fair use doctrine is not strictly limited to a defined set of purposes. Fair use has thus been successfully argued to allow a rap music parody of the song 'Pretty Woman' and reverse engineering of the program code in computer video games. A recent issues paper released by Australia's Copyright Law Review Committee has raised the possibility of a similarly broad fair use style defence under Australian law2. For now, however, the defined purpose fair dealing defence remains.
9.6 In addition to the fair dealing provisions, there are various other defences and exceptions set out in the Act, including defences that apply to:
- educational performances; and
- libraries and archives.
9.7 There is a specific exception set out in the Copyright Act that deems certain educational performances of copyright material not to infringe the public performance right. This exception is limited, however, to performances by students and teachers given in the course of non-profit educational instruction where the audience is limited to people directly connected with the place of instruction. It would not apply, therefore, to a performance at a school, TAFE or university to which members of the general public were admitted.
9.8 Not for profit libraries and archives are able to rely on a number of defences where they copy materials for supply to their users, other libraries and for preservation purposes. Document supply copying by libraries and archives under these defences is usually limited to research or study users who make specific written requests for an article from a journal or up to 10% or one chapter from a book. How these provisions apply to digital copying and transmission by libraries and archives is still uncertain. It does appear, however, that the Government will extend the operation of exceptions for libraries and archives into the digital environment.
10. How can copyright owners license others to use their work?
10.1 A person wishing to use copyright material who is not able to rely on fair dealing or other defences can only do so with the permission or licence of the copyright owner.
10.2 A licence is simply a legal term for permission and can be given in various ways:
- exclusively or non-exclusively
- expressly or impliedly
- in writing or orally
- compulsorily (by statute) or voluntarily
- individually or collectively; and
- unconditionally or subject to restrictions and limitations.
10.3 An exclusive licence is a licence granted to one person and no others. An exclusive licensee is thus the only person with the right to use the material in the manner set out in the licence. Exclusive licences must be in writing and signed by the copyright owner. Non-exclusive licences, on the other hand, can be granted to any number of licensees at the same time. The rights of non-exclusive licensees are therefore not as strong as those of exclusive licensees.
10.4 Except in the case of exclusive licences, there is no need for a licence of copyright to be granted in writing. An oral licence of copyright is an effective way of authorising a use of a work. The only drawback is that oral licences will often be more difficult to prove or disprove if there is ever a dispute about the existence of the licence.
10.5 An express licence is one granted by a positive act of the copyright owner. Implied licences, by way of contrast, arise where the circumstances are such that there is a clear implication that the copyright owner has authorised or granted permission for a work to be used in a particular way. For example, when a copyright owner makes a work available on a Website and no conditions of use are displayed at that site, it is generally accepted that there is an implied licence from the copyright owner that authorises users of the Internet to make temporary electronic copies of the work while browsing the site.
10.6 In most circumstances, licences of copyright will be granted voluntarily by the copyright owner after negotiating and agreeing acceptable terms with a particular licensee. If the licence terms cannot be agreed, the copyright owner can simply refuse to grant a licence. In some situations, however, Parliament has taken the view that public access to copyright material is so important that copyright owners must grant a licence to specified users. Accordingly, the Act now includes a number of compulsory licence schemes (also known as statutory licence schemes) which remove the copyright owner's right to refuse to grant a licence and set up a mechanism for determination of royalties and other conditions of use.
10.7 The statutory licence for educational copying is a good example. It provides for the compulsory licensing to educational institutions of the right to copy published materials and broadcasts for the educational purposes of the institution. If a fee for that copying cannot be agreed, the parties can ask the Copyright Tribunal to set an equitable rate. Other examples of compulsory licences include:
- the compulsory licence for making 'mechanical' sound recordings of musical works;
- the compulsory licence for broadcasting and public performance of sound recordings;
- the compulsory licence for copying for government purposes; and
- compulsory licences for copying published materials and broadcasts for people with reading or intellectual disabilities.
10.8 It is often impractical for large users of different works to deal individually with each and every copyright owner. For owners and users alike, the cost of negotiating individual licences is often prohibitively high. To overcome this problem, different groups of copyright owners have, over the years, formed societies to manage the licensing of their works on a collective, rather than individual, basis. A copyright user can thus obtain a collective licence from a copyright collecting society which authorises it to use the works of all copyright owners represented by that society. Collective licensing is often the only realistic licensing option when a significant volume of copyright material is to be used. Most compulsory licences are administered on a collective basis.
11. What is the role of copyright collecting societies?
11.1 As noted above, collecting societies exist largely for reasons of efficiency. It is more efficient and cost effective to appoint a single society as the body responsible for collecting royalties for a large group of rightsholders than to negotiate all permission and royalties directly between individual rightsholders and those who use their works.
11.2 For example, without a body like Australasian Performing Right's Association (APRA), acting as intermediary between rightsholders and users, the task of collecting and distributing royalties for the broadcasting and public performance of musical works would be a practical impossibility. Without APRA, every broadcaster would need to deal directly with every composer whose works they broadcast. With APRA, the negotiation process is simpler and the administrative cost of obtaining copyright clearances is substantially lower. Collecting societies are also able to enforce compliance where most individual creators could not.
11.3 The collecting societies currently operating in Australia include:
- the Australasian Mechanical Copyright Owners' Society (AMCOS), which administers the right to make a recording (a 'mechanical copy') of musical works on behalf of composers and music publishers;
- the Australasian Performing Right Association (APRA), which administers the rights to broadcast, transmit and perform in public on behalf of composers and music publishers;
- Screenrights (formerly known as the Audio-Visual Copyright Society) which administers the right to record and make copies of off-air broadcasts on behalf of producers of films and television programs;
- the Copyright Agency Limited (CAL) which administers the right to make copies of published literary and other works on behalf of authors and publishers;
- the Phonographic Performance Company of Australia (PPCA) which administers the rights to broadcast, transmit and perform in public on behalf of record companies; and
- Vi$copy, which administers the right to make copies on behalf of visual artists.
11.4 The collecting societies play a valuable role, not simply in their collective licensing activities, but also through the assistance they can provide to users who need to locate a particular rightsholder.
12. Are performers protected by copyright?
Performers' rights under Part XIA
12.1 Performers have the right under Part XIA of the Copyright Act to bring an action to prevent a number of unauthorised uses of their live performances. Strictly speaking, these rights are not the same as copyright, because they cannot be assigned to another person and are thus not regarded as personal property. They do, however, give performers significant control over:
- unauthorised sound recording or filming of a live performance
- broadcasting or transmission of a live performance or an unauthorised sound recording or film of a live performance
- commercial dealings in unauthorised sound recordings or films of a live performance (or possession for the purpose of commercial dealing).
12.2 Once a recording or film is authorised, however, the performer's rights under the Act are generally exhausted. Only by attaching contractual conditions to their authorisation of filming or recording can performers give themselves any further rights in relation to 'downstream' use of the recording or film. The only exception applies in relation to the use of an authorised sound recording on a film sound track. The performer's authorisation of this specific use must be obtained notwithstanding that the making of the original sound recording was authorised.
12.3 The 'performances' protected under Part XIA are broadly defined and extend beyond performances of 'works' to include performances of improvisations of works or parts of works, dances, circus acts, variety acts and similar presentations or shows. News reading, playing sport and crowd participation are specifically excluded from the definition of 'performance'.
12.4 The right to prevent unauthorised use of a performance lasts for:
- 20 years, in relation to unauthorised films made after 1 October 1989 (when these rights were first introduced into Australian law)
- 50 years, in relation to unauthorised sound recordings, regardless of when the recording was made.
Performers rights under the new World Intellectual Property Organisation (WIPO) Treaty
12.5 The Australian government is currently considering whether to adopt the new WIPO Performances and Phonograms Treaty, which would require it to implement full copyright-style protection for performers in Australia, at least in relation to sound recordings of their performances. Significant changes to Australian law if the WIPO treaty is implemented would include:
- the grant of exclusive, economic rights to performers over the reproduction, distribution and making available to the public (via an on demand system) of sound recordings of performances. Note that these rights will continue to apply even though the original recording was authorised.
- the grant of the right to performers to share with the record company any 'equitable remuneration' (ie royalties earned under a compulsory licence scheme) derived from broadcasting, cable transmission or public performance of sound recordings of performances.
- the grant of moral rights to performers in relation to live performances and sound recordings of those performances. The likely rights will be the right of attribution and the right of integrity, similar to the rights currently being considered for authors, composers and other creators.
13. How is copyright changing to meet the challenges of digital technologies?
13.1 For some years now, there has been a rapid increase in the use of digital technologies in the information and entertainment industries. Using a common digital format, it is now possible to combine text, images, sound, video and computer animation as part of a single multimedia product. These products are often interactive, giving end-users increasing control over their experience with the product and its contents. Over the past five years, the Internet has been evolving from a low-profile, text-based research network into a high-profile, multimedia, public access network. Tens of millions of people worldwide can, at low cost, connect to the Internet's network of networks where they have access to a huge range of information, entertainment, software and services.
13.2 These changes in the way information can be stored, manipulated and communicated represent both an opportunity and a threat for the copyright industries. An opportunity in the sense that huge global markets can now be reached at very low cost. A threat because the quality of unauthorised copying and the speed with which that copying can occur are now very high. Online enforcement of copyright is no easy task!
13.3 To make copyright more relevant and effective in the digital age, a package of 'digital agenda' reforms is currently under consideration by the Australian Government. Many of these reforms reflect new international copyright standards established under the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Under the reforms it is proposed that:
- rightsholders will enjoy stronger rights over the transmission or communication of their works to the public, regardless of whether this occurs by way of broadcast of cable diffusion.
- under a proposed new broadly based right of 'communication to the public', it will also be an infringement of copyright to make material available to the public through an 'on demand' network (eg video-on-demand across the Internet) even though the person making the work available does not actually copy or transmit the work. This will enable rightsholders to enforce their rights against those who set up Websites from which unauthorised copies are made.
- new laws will be introduced to support and ensure the integrity of electronic copyright management systems used by rightsholders to prevent unauthorised online use of their works. Prohibiting wrongful circumvention of technological protection systems and commercial dealings in certain circumvention devices.
- new laws will also be introduced to make it unlawful to remove or tamper with 'rights management information' attached to or incorporated into digital content. The integrity of rights management information is essential to many systems designed to track the use of copyright material online.
- an Internet service provider (ISP) will not be directly liable for the infringing activities of its subscribers merely because those activities took place using the computer and communications facilities of the ISP. The circumstances in which ISPs can be held indirectly liable for their subscribers' infringements (on the basis that they 'authorised' those infringements) will be clarified.
- certain temporary, electronic 'copies' made in the course of online transmission and browsing will be deemed not to infringe copyright. There has been a long debate about whether temporary electronic 'copies' are 'reproductions in material form' as required under the Copyright Act. Although this debate was not resolved at the recent WIPO Treaty negotiations, the Australian Government has decided that incidental copies made in the course of a lawful transmission should, at least, not be treated as infringements.
- fair dealing and related exceptions for libraries and archives will be carried forward into the digital environment to ensure that stronger protection is balanced by the need to ensure reasonable access to copyright material. The educatinal statutory licences allowing for schools and communities to copy material in return for payment of equitable remuneration to a declared collecting society will also be extended to the digital environment.
13.4 Another issue is whether multimedia products are adequately protected by the existing categories of copyright material. Although the component parts of most multimedia products will have adequate protection as works, sounds recordings or films, it is not currently clear that the overall multimedia compilation enjoys protection as a work in its own right. The solution may be to replace the 'cinematograph film' category of copyright with a broader category of 'audio-visual work' or 'multimedia work'. The Copyright Law Review Committee is considering this issue.