Student Name: Peter Foster Student Number: 202117722 Degree: Bachelor of Laws Course: Intellectual Property Law Course Code: LS 331 Assessment: Major Essay and Annotated Bibliography Due Date: 02 May 2003 Major Essay Question: Discuss the pros and cons of introducing a generalist fair use defence into Australian copyright law either in addition to or in submission for the existing details defences. The objective of the Copyright Act 1968 (Cth) is to protect those who create works, such as artistic works or literary works, as well as those other subject matter, such as films or sounds recordings, from those who would serve to exploit or profit from their labor, skill and creativity. But, what about those who use these protected works and other subject matter for interests different to the above? Such as for educational purposes or for broadcasting? Under the act, there are listed many defences to protect an individual or a corporation from infringement of copyright, or in other words, directly or indirectly, infringing those exclusive rights that the copyright owner possess, also listed under the act. These defences operate in areas such as fair dealing, educational uses, artistic works, performances, communication and broadcasting, computer programs, importing, copying by libraries and archives and judicial proceedings and statutes. Although the current act does provide protection, in the form of legislated, or statutory defences, it could be argued that a fair use defence, as is currently being used in the United States of America via their equivalent of the Copyright act, may be a more simple approach to this issue.

The current legislation in some areas is specific, and in others, hard to understand. A generalist fair use defence may simplify the current legislation and also create less confusion for the individual and the Court system. But, there is always the risk by introducing such a measure, it may create loopholes, and at this current point in time, the Australian Court system is reluctant to import such a principle, although it has been acknowledged in o biter. It has been acknowledged, via legal forums, that the system of copyright law in Australia is complicated, and has been argued, through submission to be made simpler. As introduced above, the Copyright Act 1968 (Cth) was introduced in response to the growing need to protect individual's creative works or other subject matter from commercial or other exploitation. The above named act provides that copyright is a statutory right, and abolishes any right to copyright at common law.

The Berne Convention for Protection of Literary and Artistic Works, an international convention on copyright protection, which was first held in 1886, and has been held in various host cities and updated since, recognized the need to protect literary and artistic works. Recent conventions have added such works as architectural works, cinematographic films and photographs. Other international conventions include General Agreement on Trade and Tariffs (GATT), first signed in 1947, and Agreement on Trade Related Aspects of Intellectual Property (TRIPS), signed in 1995, which covers trade-related areas of copyright. In the UK, the Copyright Act 1911 (UK), which was an amalgamation of copyright at common law and the Statute of Anne, is also a major influence on Australian copyright law - was adopted into Australia by virtue of the Copyright Act 1912 (Cth). This UK piece of legislation also recognized the importance of legislating in this area. In the United States, this area is legislated by the Copyright Act 1976 (USA).

This piece of legislation will be discussed below when dealing with fair use defences. It is clear, that on an international scale, the importance of protecting intellectual property is paramount. Works of an individual's skill, independent thought and labour needs to be protected, to prevent exploitation, rip-offs, and encourage future individuals to create new works or other subject matter other than works. The Copyright Act 1968 (Cth), as stated above, was introduced in response to the growing need to protect individual's creative works or other subject matter from commercial or other exploitation. It contains provisions, which describes what subject matter is protected, and rights of the copyright owner are protected. The important fact to remember with copyright law is that is does not protect ideas, but protects the form of expression.

Section 32 of the Copyright Act 1968 sets out that copyright subsists in four types of works - these being original literary works, original dramatic works, original musical works and original artistic works. Part IV of the Copyright Act 1968 also sets out the copyright subsists in another four types of areas, known as subject matter other than works - these are sounds recordings, cinematographic films, television and sound broadcasts and published editions of works. At law, the plaintiff is it is an issue, may need to identify the subject matter in which copyright is said to subsist. Other key factors that the above works and subject matter other than works must contain for copyright to subsist include: connecting factors, that is, for the subject matter to receive protection under the Copyright Act 1968, it must be connected with Australia, either by construction or by virtue of an international obligation, such as an international treaty, and these connecting factors are set out under s 32 in relation to works, and Part IV Division III relating to matter other than works; material form, that is, being "made", or being published or unpublished, for works, this is set out under s 32 (1) relating to unpublished works, s 32 (2) relating to published works, s 89 relating to sound recordings, s 90 relating to films, s 91 relating to television broadcasts and sound broadcasts and s 92 relating to published editions of works; and finally originality, s 32 clearly states that the works need be original, and copyright can only subsist in an original work, and the classical definition of an original work was established in University of London Press Ltd v University Tutorial Press Ltd where an original work is simply the product of ones' own labour, skill and expertise. If these three elements can be shown, that it will be held by the Courts that copyright is held to subsist in the work or subject matter. So, how is copyright infringed? Basically, for an individual or corporation to infringe copyright, they must infringe upon the exclusive rights of the copyright owner.

The exclusive rights of the copyright owner are set out under s 31 (1) of the Copyright Act 1968. In relation to dramatic, musical, artistic and literary works, exclusive rights include the right to reproduce the work in material form, publish the work, perform the work in public, communicate the work to the public, make an adaptation of the work as well as authorise the doing of the above acts without consent of the copyright owner. For subject matter other than works, again set out in the same section of the act, the exclusive rights of the copyright owner for sound recordings include making a copy of the sound recording, cause the recording to be heard in public, communicate the sound recording to the public, authorise the doing of the above; for cinema graphic films this includes making a copy of the film, cause the film to be seen and or heard in the public; for television and sound broadcasts, this includes making a film or sound recording of the broadcast, copying a film or broadcast and for printed editions of works this includes making a facsimile of the edition of work. There are two types of infringement. "Direct" infringement is an occurrence where a person or corporation, acts without the licence or authority of the copyright owner and carries out an act that is the exclusive right of the said copyright owner, or "does... any act comprised in the copyright." This is mentioned in the Copyright Act 1968 s 36 (1) in relation to works and in s 101 (1) in relation to other subject matter other than works.

The other type, "Indirect" infringement is an occurrence where a person or corporation engages in importation, selling, hiring, distributing or exhibiting type activities in relation to the particular subject matter, as defined under the Copyright Act 1968. Provisions relating to works can be found under ss 37, ss 38 and ss 39 relating to works, and ss 102 and ss 103 relating to other subject matter other than works. Other key factors that must be taken into consideration when determining infringement under the Copyright Act 1968 includes substantiality, which set out under s 14, makes reference to the doing of an act in relation to a "substantial part of the subject matter" and that the "reproduction, adaptation or copying of subject-matter includes the reproduction, adaptation and copying of a substantial part of the copyright subject matter." As stated in Ladbrokes (Football) Ltd v William Hill (Football) Ltd by Lord Reid: "The question of whether (the alleged infringer) has copied a substantial part depends much more on the quality than on the quantity of what he has taken. One test may be whether the part which he has taken is novel or striking, or merely a common-place arrangement of ordinary words or well-known data." Another key factor taken into consideration is authorization that is, taking action against the person or corporation, who authorised the infringing act, even if it was not carried out by themselves. An example of this factor can be shown in University of New South Wales v Moorhouse, where the High Court held that a person authorised an infringing act if the person "sanctioned, approved or countenanced" the infringing act.

In this case, the University was held liable for infringing copyright because they did not do enough, reasonably considered, to prevent copyright from being infringed. An important note to remember in relation to "indirect" infringement is that the law considers importing an article that may infringe copyright will be seen in the same light as if the article was actually made in Australia, or as put by s 38 relating to works, and s 103 relating to other subject matter other than works, if the person knew or ought reasonably have known that the making of the said article have constituted an infringement of copyright, if it had been made by the importer within Australia, infringed copyright. When, in a Court of law, it is proven that a work or subject matter other than a work, which subsists in copyright, and the owner of, whose exclusive rights have been infringer, can seek remedy under civil law, alternatively there are criminal law offences for which a person can be charged with. Civil actions that can be taken under the Copyright Act 1968 include infringement that is set out under s 115 (1) and includes such relief as an injunction against the imposing party and can seek damages or loss of profits s 115 (2); actions for conversion and detinue under s 116 with relief including an order to deliver up the infringing goods; actions for circumvention devices and electronic rights management under s 116 A, 116 B and 116 C with relief again including injunction and damages and actions in relation to broadcast decoding devices under ss 135 AN and 135 ANA with relief again including injunction and damages, with a further remedy of having the decoding device destroyed. As mentioned above there are also criminal proceedings, such as commercial dealings with infringing articles of works or other subject matter, under s 132 (1); distribution of infringing articles of works or other subject matter, under s 132 (2) and make, or possess a device used to make infringing copies or works or other subject matter, under s 132 (5). Penalties include fines and up to five years imprisonment.

It is clear from the above commentary that it can be quite easy to breach copyright. By simply "copying" or "authorising" the use of something that does not belong to you can land you in legal proceedings that could end up placing you in debt with fines, or worse, in gaol. There are, however, defences. When someone or an organization is accused of breaching copyright, if applicable, they can argue one of the following defences to justify their actions and avoid prosecution.

The Copyright Act 1968 contains a large number of provisions that allow the use of material which subsist on copyright in certain circumstances. The Act allows some of the use age to be free of charge, and others a requirement to pay for use, such as in statutory or compulsory licensing. The defences cover a variety of areas. There are defences that sanction the use of works that subsist in copyright for educational uses. S 44 sanctions the use of published works in the form of short extracts for educational use; s 200 (1) sanctions the use of works for non-multiple reproductions by teachers or students in the classroom or educational facility for use in class or exam; s 200 (2) sanctions the use of sound recordings, works or broadcast for recording and use for educational purposes and s 28 sanctions the use of a literary, dramatic or musical work for the purpose of educational instruction. There are defences that sanction the use of communication and broadcasts, such as s 111 that sanctions the making of a film or sound recording of a broadcast for private or domestic use, s 43 A for works and s 111 A for audio visual items in relation to sanctioning the use of the making a temporary copy of the afore mentioned two items as part of technical process for sending and receiving authorise communication and s 110 which sanctions the use of a newsreel to be seen or heard in public after expiration of 50 years in which the events depicted occurred.

There are defences relating to performance of works, such as s 45 that sanctions the use of reading or recitation in public of a work with acknowledgement or inclusion of this reading or recitation in sound or television broadcast. There are defences sanctioning the use of artistic works, such as s 67, the incidental inclusion in a film or television broadcast of an artistic work. S 47 of the Copyright Act 1968 deals with various computer uses that are sanctioned such as reproduction for purposes of making back up, reproduction for purposes of correcting errors and reproduction for purposes of making an interoperable article. S 44 and s 112 deal with sanction of various activities in relation to importing, s 50, s 51 and s 110 sanction various uses in relation to copying by libraries and archives and s 43 relating to works and s 104 relating to other subject matter in relation to judicial proceedings and statutes. The main area of interest for our purposes is that of fair dealing. S 40 in relation to works, and s 103 c in relation to audio visual subject matter sanction fair dealing for the purposes of research and study; s 41 for works and s 103 B for audio visual subject matter for the sanction of fair dealing in relation to criticism and review and s 42 in relation to works and s 103 B in relation to audio visual subject matter sanction fair dealing for the purpose of reporting news.

Australia's present system of fair dealing protection derives mainly from English copyright legislation that was introduced in the 18 th centuries, such as the Statute of Anne, which accepted that there may be acceptable non-licence d uses of copyright materials. In Australia today, farr dealing must be within one of the categories set out in the Copyright Act 1968 and whose categories serve to limit the scope of the defence, protecting the interests of the works and other subject mater than works creators. Unfortunately, the drafting of such legislation has left little legislative guidance as to what is to be considered with respect to determining the "fairness" of a dealing. Chief Justice Gibbs in University of New South Wales v Moorhouse made this comment on fair dealing: "The principles laid down by the Act are broadly stated, by reference to such abstract concepts as "fair dealing" and "reasonable portion" and it is left to the Courts to apply those principles are a detailed consideration of all the circumstances of a particular case." Lord Denning, in an earlier UK case, that of Hubbard v Vos per, had this to say about fair dealing in relation to criticism and review: "It is impossible to define what is "fair dealing." It must be a question of degree." It would appear that there is little guidance per legislation to determine what is "fair", and the Courts must turn to the common law to make such a determination. Probably one of the most prominent cases in this area, in determining fair dealing, is that of De Gar is v Neville Jeffrey P idler Pty Ltd, where the Federal Court explained the limits of the fair dealing provisions generally, in relation to fair dealing for research and study. The Court in this case defined "research", from the Macquarie dictionary as being "diligent and systematic enquiry or investigation into a subject in order to discover the facts or principles" and "study" as being "1.

Application of the mind to acquisition of knowledge, as by reading or investigation or reflection; 2. The cultivation of a particular branch of learning, science, or art: the study of law; 3. A particular course of effort to acquire knowledge; to pursue special medical studies... 5.

A thorough examination and analysis of a particular subject." It would appear from the decision of the Court in this case that in ascertaining the purpose and the character of the "fair dealing" is more of a question of determining whether there has been a commercial dealing with the work, but as mentioned above, this area of the law, although legislation in respect to categories, does little to shed light on the meaning of fairness. What is a "general fair use defence"? A general fair use defence can be described in two ways - a more general sense to em compass all exceptions to copyright in the public interest and in a more narrow sense to determine the limits of use without consent of the author. This type of defence is currently unavailable in Australia. It is not recognized in legislation, nor has it been adopted at common law. The Copyright Act 1976 that is in effect within the United States of America has adopted a similar principle to that of a "general fair use defence." S 107 describes the fair use as "use of a copyrighted work, including such use by reproduction in copies or or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright." The leading American case in the field of fair use is that of Luther R Campbell v Acuff-Rose Music Inc where the US Supreme Court gave a decisive opinion as to how the US factors should be interpreted.

The Court was of the opinion that each factor is to be understood as a subset of the overall goal of copyright law: to bring intellectual enrichment to the public at large by providing authors with unlimited control over their works to provide them with the necessary encouragement to create. The Supreme Court noted the four factors of importance being: 1. "The purpose and character of use, including whether such use is of commercial nature or is for non-profit educational purpose; 2. "Nature of the copyrighted work"; 3. "The amount and substantiality of the portion used in relation to copyrighted work as a whole"; and 4.

"The effect of the use upon the potential market for or value of the copyrighted work." As there is leading Australian case on this particular area in copyright law, possibly, in the future, this case could become binding on Australian common law in the future. Could this US convention of "fair use" be adopted in Australian common law and should it be? As previously stated above, Australia, at this point in time, has not legislated, nor approved at common law, the principle of fair use. Copyright law is a very important, and ever-changing area of law in the modern day world. Surely, this should include the areas of defences, to combat and to compensate, as well as encourage and protect, creators of works to continue their works, and feel safe from exploitation.

Fair use has been acknowledged, in o biter, by Drummond J in A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (No. 2). It would appear that the Courts within Australia are reluctant to acknowledge such a principle, as they are cautious that it will open the floodgates to those who would seek to exploit those works and subject matter other than works of others. It has been submitted by public forums, such as Copyright Law Review Committee, that copyright law is all about the balance between the rights of the copyright owner sand those who may benefit from such a work, be that for intellectual pursuit or otherwise.

Three main possible justifications for fair use include the public interest of making sure information is both widely accessible and freely communicated, create an incentive for future creators to create and encourage competition. Another justification for fair use has been argued by Copyright Law Review Committee in regards to simplification. By introducing such a measure into the Australian common law, it would simplify the current system, creating less confusion for the community and Courts alike, with such side affects as possible reducing the amounts of copyright infringements hitting the Court room floor. Whatever the justification, it is clear that both party's interests need to be considered, and an outcome needs to reach which reflects them both.

Although a general fair use defence may not be the answer, it could definitely benefit, and work in with current legislation to ensure these outcomes are reached. As argued above, the objective of the Copyright Act 1968 (Cth) is to protect those who create works, such as artistic works or literary works, as well as those other subject matter, such as films or sounds recordings, from those who would serve to exploit or profit from their labor, skill and creativity. But, what about those who use these protected works and other subject matter for interests different to the above? Such as for educational purposes or for broadcasting? Under the act, there are listed many defences to protect an individual or a corporation from infringement of copyright, or in other words, directly or indirectly, infringing those exclusive rights that the copyright owner possesses. As described above, current defences operate in areas such as fair dealing, educational uses, artistic works, performances, communication and broadcasting, computer programs, importing, copying by libraries and archives and judicial proceedings and statutes.

Although the current act does provide adequate protection, in the form of legislated, or statutory defences, it could be argued that a fair use defence, as is currently being used in the United States of America and perhaps a more simple approach to this issue. The current legislation in some areas is specific, and in others, hard to understand. A generalist fair use defence may simplify the current legislation and also create less confusion for the individual and the Court system. But, there is always the risk by introducing such a measure, it may create loopholes, and at this current point in time, the Australian Court system is reluctant to import such a principle, although it has been acknowledged in o biter.

It has been acknowledged, via legal forums, that the system of copyright law in Australia is complicated, and has been argued, through submission to be made simpler. Annotated Bibliography:" Fair Dealing and the Clockwork Orange Case: 'A Thieves' Charter?" , Readings in Intellectual Property: A selection of Articles from EL P. R and ENT L. R, Edition of Firth A, Lane S and Smyth Y, London 1998. Pages 135 - 145. David Bradshaw, in this article, examines the decision of the English Court of Appeal in the matter of Time Warner Entertainment Company LP v Channel Four Television Corporation PLC and another (1994) E MLR 1.

The facts of the case are discussed, concerning Stanley Kubrick's novel "A Clockwork Orange", and the apparent attempts by a local television station, Channel Four, to do a documentary on the film, and its history, which intended to include actual footage from the original film of the above novel into their program. Bradshaw, in this article, discusses the four main legal issues that the Court of Appeal had to deal with when dealing with this case, including statements from the learned judges. He then finishes this article with a critique of the Court of Appeal's decision dealing with the issues of fair use and parody, and how they came about describing such a principle under the newly passed Copyright, Designs and Patents Act 1988 (UK), and criticizes the liberal approach the Court took in this matter, opening the "legal floodgates" for copyright infringers. McKeough, Jill, Bowrey, Kathy and Griffith, Phillip, Intellectual Property: Copyright and Materials, Lawbook Company Casebook, Sydney 2002.

This comprehensive legal textbook discusses in great detail the various elements to Intellectual Property law, its' relevant legislation's and the important cases which have shaped this field. It begins with discussing just what Intellectual Property Law entails, from an international angle, then discusses in details areas such as Copyright, Criteria for subsistence in Copyright, Ownership, Exploitation, Infringement, as well as the areas of Patents and Trademarks. This text is quite useful as it includes many reference materials such as key cases and quote from Judges and judgement's, legal documents such as legislation and discussion papers and boasts an impressive bibliography. This text is very useful for getting grounding in this area of law, as well as a reference tool for researching specialised topics such as fair dealing. Ploman, Edward W, and Clark Hamilton, L, Copyright: Intellectual Property in the Information Age, Routledge and Kegan Paul, London 1980. Although this legal textbook is a little outdated, it offers some useful insight to early discussion into the realm of copyright and intellectual property.

This book discusses in great detail the history of how copyright has developed into the modern age of information, involving the digital age and the computer age. It discusses in details key legal concepts, such as authorization and infringement, as well as discussing a range of defences to infringement action, including fair use. This textbook does not make a great deal of reference to case material, but does make a great deal of reference to academic material and authors in this field. Ricketson, Sam and Richardson, Megan, Intellectual Property: Cases, Materials and Commentary, 2 nd Edition, Butterworths, Sydney 1998. An extremely useful legal textbook. Both of the authors of this text provide an easy to read and understand approach to the area of Intellectual Property Law.

The book has a list of cases and statutes in the first section, then the remainder of the text is divided into sections dealing with the concept of intellectual property and its' background into Australia; the copyright and design; ideas and inventions, confidential information and patents and trade designations and business goodwill's. This book is great to use as a ready reckoner of sorts to quickly look up parts of acts, or look up results of cases, as well as describe the evolutions in this area of law. This book is fairly up to date, being published in 1998, so contains fairly up to date cases and references. This book contains great discussions on legal principles - going into detail to explain definitions and judgement's, and offers insights into possible reforms in this area of law. Reynolds, R and Stoianoff, Natalie, Intellectual Property: Text and Essential Cases, The Federation Press, Sydney 2003. This very recently published legal textbook is a very comprehensive guide to Australian Intellectual Property law as it stands today.

As with the above textbook, this also offers a introductory section listing the various key cases and statutes in this ever changing area of law. The book then, in the form of an introduction chapter, explains just what exactly intellectual property law is, before explaining its various elements in depth, such as copyright, patents and trademarks. The section on copyright is extremely useful as it traces this area of laws evolution, as well as offering discussion as to other possible paths this law could evolve into. It is a useful text for researchers to pinpoint key discussion areas, such as fair use dealings for instance, and focus on legislation and / or casework that has shaped this field. As this book has only recently been published, it is invaluable as a tool for law students to be up to date with the law as it stands to the day. BIBLIOGRAPHY: - Balch, Libby, "CLRC recommendations on fair dealing: some comments", Article for Communications Update, Australian Copyright Council, 6 November 1998.

- "Conference on Fair Use", Final Report to the Commissioner on the Conclusion of the Conference on Fair Use, United States of America, November 1998, web "Copyright Act 1976, as amended", Legal Information Institute, Cornell Law School, web "Copyright in Australia", A Short Guide, web "Fair Dealing and the Clockwork Orange Case: 'A Thieves' Charter?" , Readings in Intellectual Property: A selection of Articles from EL P. R and ENT L. R, Edition of Firth A, Lane S and Smyth Y, London 1998. - McKeough, Jill, Bowrey, Kathy and Griffith, Phillip, Intellectual Property: Copyright and Materials, Lawbook Company Casebook, Sydney 2002.

- "Paper for Meeting with the Copyright Law Review Committee on 4 October 2001, Discussion Paper, web Ploman, Edward W, and Clark Hamilton, L, Copyright: Intellectual Property in the Information Age, Routledge and Kegan Paul, London 1980. - Ricketson, Sam and Richardson, Megan, Intellectual Property: Cases, Materials and Commentary, 2 nd Edition, Butterworths, Sydney 1998. - Reynolds, R and Stoianoff, Natalie, Intellectual Property: Text and Essential Cases, The Federation Press, Sydney 2003. - "S implication of the Fair Dealing Provisions in the Copyright Act 1968", Comments on the CLRC's Discussion Paper, CAUL: Council of Australian University Librarians, August 1997, web "Simplification of the Copyright Act 1968", Part I: Exceptions to the Exclusive Rights of Copyright Owners, Copyright Law Review Committee, web.