AustLit

COPYRIGHT

Copyright law has played a consistent, albeit changing, role in relation to Australian media since the start of the 19th century. While Australian law initially was governed by imperial legislation, later this was overlaid by colonial copyright statutes. Australia developed its own copyright legislation following Federation, but this largely imitated British law. It was not until around the 1970s that Australian law had matured enough to develop its own identity (although it was still constrained by international copyright).

There have been a number of consistent themes in Australian copyright law, including whether and how various ‘new’ types of media should be protected. When newspapers were established in Australia at the beginning of the 19th century, British law was clear: articles written in newspapers were protected as literary works. While protection eventually was extended to drawings and photographs that appeared in newspapers, it did not cover newspaper headlines. During the 20th century, copyright law was asked to protect other types of media, notably radio, television and the internet. While there were some failures—such as the attempt to establish copyright in program formats for television game shows and reality television programs—and a number of struggles concerning the radio broadcasting of phonogram records, for the most part copyright law was able to protect new media.

Copyright protection was extended to television broadcasts in 1968. This law was transplanted from the United Kingdom, where broadcast copyright had been introduced in 1956 to get more sporting events on television. But while British law failed to prevent third parties from filming events from neighbouring properties, Australian law prohibited television stations from broadcasting sporting events from outside sporting grounds. While the government prevented over-the-fence broadcasting by television stations, it rejected an amendment that would have brought radio stations under the same law because the ‘government did not wish to interfere with an established practice which had already proved satisfactory’.

Since the 1980s, Australian copyright law has grappled with the changes brought about by digital technologies. While there is still some uncertainty about the liability of internet service providers, there was never any doubt that online material was subject to copyright, and thus potentially protected. At the same time as decisions were being made about whether new types of media should be protected by copyright, questions also arose about the applicability of pre-existing defences to the new media. Questions arose, for example, as to whether fair dealing applied to machine-based copying (yes); whether ‘infotainment’ could be classified as ‘reporting of news’ for the purposes of fair dealing (yes); and whether the time-shifting defence instigated to allow time-poor viewers to use their video cassette recorders to record and view television programs at a later, more convenient time also applied when television broadcasts were recorded in the cloud and played on portable devices such as smartphones and tablets (ongoing).

Another challenge for copyright law has been the development of new ways of transmitting, copying and relaying pre-existing media services. While this has usually manifested as an issue about the adequacy of existing modes of protection, historically this has not always been so. For example, to encourage organisations to invest in the infrastructure needed to establish a telegraph system in Australia, most Australian colonies passed legislation around the turn of the 20th century that rewarded investors with exclusive rights in the news for a very limited period of time (usually between 12 and 24 hours). Importantly, and contrary to established legal doctrine, telegraphic copyright extended to the facts that were relayed and not, as is the case now, to the way in which those facts were expressed.

Over the course of the 20th century, the advent of the tape recorder, the photocopier, the VCR and other copying devices fundamentally altered the places where copying occurred, the people who did the copying and the amount that was copied. The fact that the new copying technologies were disparate, remote and difficult to control meant that copyright owners were unable to monitor where and how their works were copied. While they might have been able to identify the occasional infringer, it was practically impossible and economically unfeasible to pursue all of them. Suddenly, rather than having to think about a relatively small number of known copiers or users, copyright owners were faced with a situation where they had to contend with a large number of people copying in a range of different locations.

The decentralisation of copyright was also evident with radio, film and television. As well as altering the relationship between live performers and their audiences, radio, film and television also created new audiences, which necessitated the establishment of new networks. The problem here, however, was that the end-users who consumed copyright works were widely dispersed, difficult to identify and even harder to control. In this sense, the problems created by radio, film and television were similar to those created by the tape recorder, the VCR and the photocopier—namely, how to ensure that copyright owners were able to be compensated when their works were copied or used.

A number of strategies were adopted to respond to this problem. After an attempt to impose taxes on copying devices was declared unconstitutional, copyright owners shifted their attention to the party that supplied the copying devices (and thus authorised the infringing activity), rather than the person who did the copying. This was followed by statutory licences that imposed legally sanctioned networks, which linked the relevant parties, and the establishment of collecting societies that monitored and administered copyright, such as the Australasian Performing Right Association (APRA) and the Australasian Mechanical Copyright Owners Society.

The ensuing bureaucratisation of copyright played, and continues to play, a pivotal role in the way Australian copyright law regulates press, radio, television and new media. APRA vigorously pursues copyright royalties for its members, leading in 1970 to a dispute in which commercial radio stations refused to play songs from the six major record labels. It also battled the ‘parallel importing’ amendments in 2002 and changes to the Copyright Act in 2006.

REF: B. Sherman and L. Wisemen (eds), Copyright and the Challenge of the New (2012).

BRAD SHERMAN