Australian Intellectual Property Law - Essay Example

Title: Australian Intellectual Property Law Name of student: Course name: Class name: Date assignment due: Topic: Australian copyright law – in particular the law on authorship, ownership and infringement –, has consistently failed to recognize the complexities of how modern music is produced. Discuss. Introduction Copyright is a type of intellectual property protection that is meant for people who endeavor to produce artistic and literary works. According to the Australian law, every individual has a right to provide protection to moral and economic interests that arise from their creative works. Copyright law does not protect idea; rather it protects their expression. In the case of Australia, the Copyright Act of 1968 clearly sets out this law. The law is also set out in court decisions that were part of the law’s interpretation in previously held copyright cases. The copyright law receives amendments from time to time in order to keep it up to date and relevant. This law gives certain rights to owners of copyright to do certain specified things with their creative material. Music is one of the components of creative works that are protected under copyright law. Copyright Law on authorship One of the problems with the Copyright Act of 1968 is that it fails to define who an author of a work of art is. In most cases, it should not be difficult to give a definition of a person who authors a musical, dramatic, literary or artistic work, this piece of legislation fails to do it. Various attempts at defining an author have indicated that he is the originator of a certain form of musical, dramatic, literary or artistic expression. Usually, authors will be required by law to give proof of having expended some effort, skill and labor in order to create the work in its current material form. In this case, a mere copier, transcriber, amanuensis or scribe cannot be termed as an author. This is because such persons have not expended the right combinations of efforts, skill and labor though they may have contributed to the transformation of an original work. In the world of rapidly changing technology, many categories of professions relating to the music industry have emerged. Today, singers are not the only recognized sources of copyrighted material in this industry. There are composers and producers, who have emerged as a very major force in the future development. Technology has enabled them to play an integral role in the creation of musical works. The Copyright Act of 1968 does not address how the works of these people should be treated as far as authorship and infringement issues are concerned. As technology continues, the modern music is being integrated into other genres of artistic expression such as cinematography through multimedia platforms. For this reason, a situation is created whereby it is difficult to tell when infringement is taking place and when it is not. Fawcett reports that according to this law, the copyright holder of sound recordings is the person who makes the sound recording1. The only exception is during live performances. The person who first owned the record of that sound recording is the person who owns the copyright. The law defines a record as a disk, paper, tape, or any other device within which the copyrighted sounds are embodied. A sound recording, in the act, refers to the aggregate of sounds that are embodied in a record. Anyone who owns the master record immediately after the first recording is the rightful copyright holder. In the case of live performances, the person who makes the sound recordings owns the copyright on them. The copyright law faces many hurdles of ensuring that the rights of owners of recordings as well as live performances are safeguarded from any forms of infringements. Today, moments after a musical performance has commenced, live coverage images of the performance may be broadcast to television stations all over the world. While copyright law may impose control on how such broadcasts are made, it is toothless when it comes to the issue of online publication of such performances. Anybody can upload scenes from the performance without being charged anything. People who do this may go on to sell such music or to use it to fulfill their commercial interests. This amounts to infringement and the act does not address this issue. On the issue of joint authorship, the Copyright Act 1968 has a provision for situations whereby different authors have contributed towards the creation of a sound recording or record. According to this act, a person where merely supplies facts and ideas to another artist is not considered to be a joint author. Similarly, a person who supplies another person with artistic ideas for use in composition of music, cannot, on this ground alone, be considered to be a joint author. The Act requires a situation whereby the contribution of one author is inseparable from that of the co-author. Today, technology has made the music industry to have stratification of tasks. It is very easy to define who does what in a co-authored musical piece. For this reason, the Act fails the test of time and it therefore requires to be amended. In the case of Bulun Bulun and Milpurrurru v R&T Textiles, an attempt was made to expand the idea of joint ownership, so that it could cover communal ownership. The contention in this was whether or not ritual knowledge of aboriginal groups should be communally copyrighted. The notion of communal copyright failed to pass through in this case because there was no basis for coming up with the finding that the Ganalbingu people shared an equitable interest in the artwork whose copyright was being contested. In the case of musical compositions whereby there is no known author, the copyright act 1968 faces very many difficulties. In the U.S works of art with no known author are referred to as ‘orphan works’. Orphan works are those forms of artistic expression that have been published either anonymously, under a pseudonym or a false name. Copyright users face difficulties especially in the case whereby they are willing to pay a copyright fee in order to use the work. For the act, the main difficulty is that the period of copyright is difficult, if not impossible, to ascertain. These difficulties have been documented in different copyright reform reviews. In 2006, the Attorney-General’s department promised to conduct a review on the issue of orphan works. If the issue is resolved, the main beneficiaries would be educational institutions and libraries, where librarians are always keen to avoid using any copyrighted musical work without attribution, copyright appreciation and payment of the required copyright fees and request for permissions. On the issue of first ownership, complications arise with the use of the internet to commission musical works. Although the act provides for the commissioning agreements that can be entered into between the commissioning organization and the composer, it fails to put into consideration the fact that many online commissioning organizations are not registered with the relevant Australian authorities. Moreover, they do not operate within the country’s jurisdiction although they have a commanding influence on the country’s music scene. In this case, composers may be duped into selling their works cheaply only for such works to be used to make online hits that are worth much more that what the original composer earned from the work. Law on ownership The copyright act 1968 gives the owner of a musical composition the right to control the use to which the work is put in various ways. However, this form of control is not absolute. For instance, while the owner of a specific musical work has the exclusive right over how the work is reproduced in any material form, he has no control over who listens to it. The main problem here is that there are many subtleties that arise with online sharing of copyrighted works. For instance, the very act of listening to a musical composition online also amounts to reproduction through the streaming process. The copyright act does not address this problem, let alone acknowledging it. The person who owns a copyright has an exclusive right to publish the work, reproduce it in any material form, make various adaptations of the work, display the work in public and do adaptations relating to all these exclusive rights. However, today, online media provides many forms of sharing music that fall on the borderline between public and private settings. Modern technology makes it very easy for copyrighted works to be adapted for purposes of producing derivative works over which the original author has not copyright. The traditional setting of broadcast media has been completely altered by the onset of internet technology. Whereas the traditional broadcast media could easily be regulated in terms of the level of access that had on copyrighted works, today, things have changed completely. Owners of copyrighted works continue to lose millions of dollars to online pirates despite having entered into expensive contracts with media companies for sale oversight purposes in a bid to try and deal with the problem. In the Australian case, as with the scenarios in many other countries, the copyright act is yet to adapt to these changing realities. Mark et al notes that the reproduction right is exercised only when musical work is actually copied in a material form2. However, in this age of computer, one does not have to reproduce a musical composition into a material form to have infringed into the copyright owner’s rights. He only needs to store the copyrighted work in his computer’s memory, as part of any other information that is in his computer’s system. This way, nothing seems wrong whereas an infringement has been done. When such a user shares the music online, he has reproduced the musical work without permission and has therefore committed an infringement. As far as the Copyright Act 1968 goes, reproduction is only said to have taken place when there is change from a hard copy or analogue form into a digital form. When the work is store in the form of a computer program, reproduction takes place when there is a derivation of an object code from a source code, and vice versa. Therefore, if, as implied, there is temporary and incidental storage of such a program into a computer’s RAM, then, this amounts to infringement of copyright. If this is the case, then everyone who avails or accesses music online, including the owners of this copyrights, are infringers. This brings to the fore a very important question that has kept arising in this information age: caching, that is, a situation where material that is frequently accessed is copied onto a local computer system temporarily in order to ensure that it is accessed faster and more cost-effectively in the future. According to the act, proxy caching does not amount to copyright infringement. However, the provisions in this act are subject to the explicit provision that the system is being operated on behalf of or by a body that administers an educational institution. For this reason, proxy caching is meant to facilitate easy access of information. Although the Copyright Act 1968 gives the copyright owner of the musical work the exclusive right to publish it, many difficulties arise today that make copyright owners feel helpless about this provision. It is the norm for an artist to reproduce a work of art and to prepare it for publication only to find out that it has leaked into the niche market as early as many months before the officially planned publication date. Once the work has been made available online by unauthorized persons, the copyright owner literally loses the rights to reproduce it. If he still holds these rights in law, these rights mean nothing since someone else has already saturated the market with the said copyrighted work. Moreover, although an artist has the right under the copyright act to perform his work in public, the definition of the term public is vague. Public performances include live performances, any aural or visual presentation of music (such as presentations on radio, television, film or any other form of reception equipment). The term ‘operation equipment’ is used in reference to a medium such as television, which enables a public audience to experience the musical composition. In this era, the concept of reception equipment should be extended to include online media. In online media, people view or listen to what they want to hear. The television revolution is taking place at a fast pace with the global community preparing to usher in the era of digital television. The copyright act may be incompatible with most of these technological changes that are already changing the way copyright owners grant permissions as well as receive royalties and other types of fees whenever their music is played on different reception equipment. On the issue of defining the term ‘public’, it appears that it is defined in a manner that favors the copyright owners. This concern has been raised in many court decisions an example of which is APRA v Telstra Corporation. Australian Intellectual Property Law: infringement According to the Australian Government Attorney General’s Department, the copyright that is in a musical work is infringed whenever any act that the copyright owner has the exclusive right to perform is performed by another person in Australia, who is not the owner of the copyright (or his license)3. A good example is when one’s music is reproduced or performed in public without the permission of the copyright owner. However, this general is always subject to different exceptions that are contained in the copyright law. The copyright law makes it an infringement to import that contains infringement of copyright into Australia for purposes of trade. However, pirated articles such music, computer games and videos are hard to trace to the first importer. It is also difficult to trace whether the importer has legal authority to transact in these creative works. The law makes provision for some exceptions when one may be allowed to import music without the copyright owner’s permission. This is referred to as parallel importation. However, even with the introduction of clauses of strict liability, the copyright act is still not efficient enough to rid the country of pirates and copyright infringers who continue to exploit creative artists. As some Australian legal experts claim, the main problem with the copyright law in its present form is treating pirates and infringers like everyday music consumers while at the same time treating everyday consumers as copyright consumers. They blame this state of affairs on the inclusion of the strict liability clause that was introduced into the copyright act in 2006. Strict liability simply means that a person can be held liable for infringement offences even in the complete absence of solid proof that he knew that he was dealing infringing copies of music or performances that were infringing on the copyright their owners. As far as music copyright is concerned, the Copyright Amendment Act 2006 highlights the different ways through which an individual may be liable for strict liability. Some of these ways include (a) making a work of art ( for example music) which is an infringement in order to sell it or to gain profit or commercial advantage, (b) exposing or offering infringing copies of music or other work for sale, (c) importing music into Australia with an aim of selling it, offering it for sale, hiring it out, distributing it for trade and so on, if it is an infringing copy and (d)possessing a musical work or any other work of art, in preparation for, in the course of hiring it out, offering it for sale, selling it, distributing it for commercial purposes etc, if it contains infringements, among many other strict liability provisions. Apart from the provision of strict liability that target people who engage in commercial dealings within the realm of infringing works, a new system involving ‘on the spot’ fines has been introduced. On the issue of strict liability, it appears very strange that a provision such as this one can exist without any requirement for knowledge. This goes against the international norm, in which case only intentional acts are criminalized. Instead of addressing the complex ways in which modern music is produced, this Copyright Amendment Act 2006 introduces irrelevant clauses that neither deal justice to Australians nor address the root of internet-based piracy and other forms of infringements. The issue of ‘on the spot’ fines is also problematic. According to this option, the police have an option of issuing infringement notices to people who are alleged to have committed strict liability offences to pay a certain penalty as an alternative to the prosecution process for the offence committed. This type of law sounds like some kind of traffic law, whereby the issue of infringement is as petty as committing it, getting caught, being issued with a notice and paying up the fine. When one looks at this provision critically, it encourages copyright owners to go after the people who sell infringed music instead of going for people who sell the technology that makes it easy for music infringements to take place. In today’s advanced technology, infringements are taking new forms, with peer-to-peer (P2P) file uploads and sharing mechanisms being the most effective ways for music pirates to transfer massive quantities of copyrighted music for commercial purposes. Some legal experts in internet law have proposed the creation of a legislation that limits the number of music files that can be shared on a P2P platform to 50 only within a certain period of time. Although the current copyright attempts to pout such forms of constraints, the limits put are not anywhere near a clear description. The main problem with today’s Australian copyright act is that there are so many technological gadgets that infringe on copyright, from mobile phone to computers to iPods. Technology has advanced by leaps and bound and removing the knowledge requirement by introducing the strict liability is set to have a significant effect on not only the expansionary effect of useful multimedia communication technologies, but also on the market value of copyrighted music and other works of art whose ownership is being easily transferred on the internet today. When one downloads a file containing music that has been copyrighted by the owner, the new copyright act treats it as an act of infringement. This does not augur well with the realities of today’s technological world. The best way of dealing with such a problem would be closing up websites that facilitate reproduction of music. The same case applies to a situation whereby one imports computer software including collections of works such as electronic sheet music into Australia without first getting permission from the copyright owner in Australia. In real sense, very few people can afford to overcome the lure of clicking on the download icon on the website that provides them with free music. Terming such an act as infringement is a mistake. Instead, the government should put in place censorship mechanisms of ensuring that all music that is downloaded into Australian laptops, computers, iPods and other gadgets of technology does not contain any infringements. This may be a difficult thing to do because of the global nature of today’s world of internet use on a global scale. The Copyright Amendment Act 2006 (Act) was enacted against the backdrop of increasing concerns that the Copyright Act 1968 (Cth) was too weak to deal with the emerging issues of copyright in an increasingly technological world. The changes that were put in place relate to new fair dealing defenses, a new protection for technology measures of safeguarding the distribution of copyrighted music as well as infringement exceptions and offences. The Australian government managed to avoid replicating the U.S law on the ‘fair use’ provision. In its place a new fair dealing defense on parody and satire was introduced. By failing to define the terms ‘parody’ and ‘satire’, the law leaves an open for techno-savvy pirates to look for legal loopholes to continue reproducing music in the name of parody and satire only to flood the market with music works that infringe copyright laws. Conclusion The Australian copyright law, particularly the law on authorship, ownership and infringement, seems to have consistently failed to recognize the complexities of how modern music is produced and distributed. The provisions contained in the Copyright Act 1968 (Cth) as well as the Copyright Amendment Act 2006 (Act) do not reflect the day-to-day technological practices that have become a daily experience for everyone who lives in the digitally-enhanced information age. Instead of cracking down on technologies that facilitate infringements such as download websites and computer program makers, the law targets users of these technologies. More recently, the same law has even introduced strict liability provisions such that unintentional infringement acts are criminalized. Until such clauses are removed from Australian copyright legislation, the existing laws will not be effective in putting an end to music piracy and infringement. References Australian Government Attorney General’s Department, When is copyright infringed? January 23, 2008, Retrieved on 13th April 2010 from http://www.ag.gov.au/www/agd/agd.nsf/Page/Copyright_Wheniscopyrightinfringed. Davison, Mark, Monotti, Ann & Wiseman, Leanne, Australian Intellectual Property Law, Cambridge: Cambridge University Press, 2008. Fawcett, J. Torremans, P. Intellectual Property and Private International Law. Oxford: Oxford University Press, 1998. Read More