Intellectual Property Law in Australia - Research Paper Example

Name Instructor Course Date Intellectual Property Law in Australia Introduction The intellectual Property law covers a broad area in the Australia laws. The scope covers areas such as copyright, patents, trademarks, industrial designs, and other rights of intangible goods. IP law has its foundations from international and regional agreements depending on the area of Intellectual Property. The conventions set out the scope of industrial property, intellectual property rights, and criminal sanctions in cases of infringement. Additionally, Australian laws also set out the intellectual property principles and rights. The Australian constitution gives the parliament powers to make laws regarding copyrights and patents. 1 Copyright covers a wide range of subjects, and The Copyright Act 1968 divides the scope of protection into two parts, the economic and moral rights. According to the Australian courts, Copyright protects the tangible or broadcast embodiment and expression of ideas or information. 2The existing defenses to copyright infringement in Australian law are not flexible enough to promote innovative business strategies or deal with the changing digital world. Therefore, there is a need to balance the legislative setting so as to fully provide for competing public interests of protecting private property rights and the freedom of expression. Copyright Law in Australia In Australia, copyright is governed by a statute known as the Copyright Act that was adopted in 1968. The Act protects original content from four areas literary, dramatic, musical and artistic works. Copyright is the exclusive right to prevent reproducing an original work or act and controlling how material is disseminated publicly. Therefore, copyright is personal property with the capability to be sold, licensed, transferred or devolved by the will of the owner or by law. However, the law creates exceptions whereby other people can use the copyright material without consent from the owner in certain circumstances. The exceptions outlined by the Copyright Act are called the fair dealings exceptions, and they are founded on the concept of fairness. The limitations give full authority to another person to use the material without compensating the owner.3 Australia has ratified most intellectual property international conventions that complement the Copyright Act and allow the Act to be applied to foreign qualified materials in accordance with the principles of national treatment.4 Some of the international instruments that Australia is party to include the Berne convention(Paris Act), Rome Convention, The UCC, TRIPS, the WCT, and the WPPT. The international Conventions provide a three-step test under which the confine the exceptions to the rights of private property owners are confined. First, the exception and limitations must be pertaining to certain particular cases. Second, they must not clash with the ordinary exploitation of the work. Third, the exceptions must not unfairly prejudice the lawful interests of the right holder. The main purpose of establishing copyright law systems is to wholly protect the author’s interests. The original author of the material is entitled to a number of exclusive rights that direct the use and distribution of the author’s work which have been invented through hard labor. Therefore, adequate protection is essential so as to reward intellectual effort and provide an incentive to create more materials. Copyright protects the author’s economic rights and the moral rights such as the right of integrity in opposition to any unlawful reproduction, mutilations and alterations. The United States Supreme Court reinforced the function of the copyright system in the case of Harper & Row v. Nation Enterprises 5, where it was stated that the rights granted by copyright assures contributors that their labor will be fairly rewarded. The protection afforded by the copyright system extends to the safeguarding of public interest. This is done by the promotion of the progression of knowledge and learning, conserving the public sphere, and raising a democratic civil society. Therefore, an effective copyright system must promote the development of knowledge and learning and the advancement of science and culture.6 Copyright Infringement in Australia Copyright infringement takes place when a person does anything that is prohibited by the Act without the permission of the copyright owner. Therefore, direct and indirect infringement takes place whereby there is a material where copyright subsists and there is no consent from the original rights owner. The infringement occurs when the material is reproduced, performed, distributed or publicly displayed without authorization. As per the Australian High Court, copyright law is a balancing act between bestowing of private property right to induce creativity and production and the rights of the public to get and access knowledge. Thus, the fundamental nature of copyright is to prevent infringing on the private rights of the owner.7 The fair dealing exception is specific and Australia has a detailed Copyright Act that provides for the specific acts under the fair dealings that do not constitute copyright infringement8. The incorporation of fair use would lead to a broader exception to copyright infringement for all the activities deemed fair. As a result, people would use a copy of a copyrighted material without asking for permission from the original copyright owner.9 Fair Dealing Exception The Copyright Act does not define fair dealings. However, the statute states instances where the exception is applicable and for what purpose. The exception includes research and study10, criticism or review11, satire or parody12, news reporting13, and a legal practitioner or a registered patents and trademark attorney providing professional advice14. The exceptions are also limited to certain materials such as dramatic, literary or artistic works15, adaptations of the works16, and audio-visuals things17. The Australian laws define the scope of fair dealings. To determine whether a use falls under the fair dealings exception, it must undergo two processes. The use must involve one of the specific purposes outlined by the Copyright Act, and it must be fair. The circumstances of the case determine the scope of fairness. There is a legal requirement of acknowledgement when dealing with criticism or reviews, and any matter relating to the reporting of news in any broadcast.18 Additionally, the Australian Copyright Council has a quantitative test for reasonable use of materials for research or study.19 The exception for the purposes of research or study and indirect sound recording of performances puts down matters that must be considered when deciding whether a use constitutes fair dealings. Additionally, the courts have discretion to decide the aspects that are relevant in the determination of what is fair in a certain case in respect to the fair dealings exceptions. The courts can also look to common law precedents to determine the factors of fairness in a situation. The application of the fair dealing exception covers any user of the copyright material as long as the use of the work falls under the provided exceptions in the Act. The court narrowly looks at the maker of the copy and not the actual use of the copied material. Since the promulgation of the Copyright Act, various amendments have been made on the exception of fair dealing so as to strike a successful balance between public interests and the interests of the copyright owner. The amendments are aimed at informing the public on what is considered fair by the courts and increasing the scope of the fair dealing provision. For example, in 2000 there was a copyright amendment to include digital agenda. The aim of this amendment was to align the copyright legislation with the modern technological changes and developments. Further, the word copy was replaced with reproduce to cater for digital technologies. The Act does away with general defences and the user has to rely on specific clauses of fair dealing defences. The development of the Copyright Acts over the years has shaped the outcome of Copyright law in Australia.20 The provision of fair dealing for the purposes of research and study is structured and comprehensive in Australian laws because the provision incorporates and the courts apply the three-step Berne test outlined by the Paris Act. The users are more informed on what constitutes fair dealing in research and study. For example, there is a comprehensive definition of reasonable proportion in the Act under section 1021. Lecturer’s notes are also excluded from the definition of literary works and the courts apply the literal meaning of research and study as provided for in the Macquarie Dictionary. A Copyright amendment act was introduced in 2006 on the fair dealing exception for parody and satire. The establishment was due to the Australia-US Free Trade Agreement, also known as (AUSFTA). The amendment was significant to the Australian laws because it substantially increased the protection for the interests of copyright owners. However, the increase led to an imbalance in relation to the protection of public interest. The foundation of the imbalance was as a result of adopting American standards without integrating an extension of the current exceptions governing user entitlement. The significant imbalance exposed a need to expand the copyright defences available to the users of copyright and the necessity of transformation rather than suppression. Rather than focus on the defining terms defining the specific purposes of the dealings, the Australian courts must engage in the significant task of identifying and accommodating the diverse interests of the private property owner and the public interest at stake. News reporting is the strongest freedom of expression claim in regards to uncompensated dealings with copyright protected material. News helps keep the citizen informed and it is essential for political speech and democratic involvement. Therefore, it is essential to identify what comprises of news and the relevance of the new items to the general public. In the context of the freedom of expression, there are various claims available that support uncompensated use of copyright –protected material for news. However, the invocation of the principle of freedom of expression does not completely define the appropriate scope of fair dealing.22 The significance of fair dealing is justified using a public interest argument whereby it ensures that information is widely accessible and can be freely communicated to the general population. The fair dealing exception to infringement of copyright is founded on the recognition of the overriding public interest in the reproduction of copyright materials for certain purposes as outlined in the Act23 Fair Use Exception Fair use is a defense to copyright infringement. The use must be fair, and the concept of fairness is determined on a case to case basis. Australia has proposed that the doctrine of fair use should be used to supplement fair dealings in the Australian laws because it is usually more flexible and adaptive. The fair use exception substantially codifies the common law and the exception has been enacted by various countries such as the United States. Fair dealings and fair use share a similar common law source.24 The Australian Law Reform Commission has made recommendations for the amendment of the Australian Copyright Act to adopt the doctrine of fair use. The creative community is for the adoption of the fair use doctrine because it will enhance innovation. The advancement in technology has enhanced the consumer’s awareness of the advantages of having access to a copyright-free zone that allows for certain uses of copyright work. The fair use principle is an example of a copyright-free zone whose economic benefits flow from the fair use of materials in the global market. The issue of fairness is central to the doctrine. Thus, the courts must consider four elements. First, the reason and character of the use, the nature of the material, the quantity and significance of the used part, and the effect that the use will have upon the potential market for the copyright material and its value.25 The American doctrine of fair use has allowed big enterprises in the United States to use copyrighted materials without compensating the rights owner. According to the Copyright Act in Australia, the enterprise cannot use any Australian photographers, artists, creator, publisher, or writers work unless it is for the purposes of public interest as outlined by the Act, for example news reporting. Therefore, the use of a fair use doctrine in Australia can have adverse effects where educational institutions can refuse to pay license fee for the substantial amount of copyright material they have access to. Thus, the negative effect would be felt by the Australian private rights holders.26 The fair use doctrine is also based on public interest because it tries to maintain a sense of balance between the author’s interests in exploiting their work commercially and public interest in the unrestricted flow of ideas and information.27 The fair use principles have inbuilt safeguards that ensures communication is not overly restricted by the legislative monopoly given to the private property owners, more so the idea/expression dichotomy and the fair dealings and fair use defence. The inclusion of digital technology and computer programs rights have become difficult to define for the courts.28Further, the doctrine of fair use provides protection for transformative work but the scope of this protection is not outlined even in the United States. Intellectual property laws and the freedom of expression Intellectual property rights affect the freedom of speech and expression. Various legislations and case laws have established the connection between copyright and the freedom of expression. The Australian Digital Alliance and Australian Libraries Copyright Committee claim that there is a fundamental connection amid freedom of speech and copyright. The two bodies declared that the fair dealing exception in the Copyright Act interferes with the freedom of expression and thus, must be replaced with the fair use exception.29 Some of the case laws from the European Court of Human Rights concerned with the relationship between copyright and freedom of expression include in Ashdown v Telegraph Group Ltd, where the Court of Appeal held that copyright is adverse to the freedom of expression30. The Court of Justice of the European Union (CJEU) stated that intellectual property rights must not be protected absolutely nor must they be inviolable, rather, the rights must be balanced against other basic rights such as the Freedom of expression31. Recently, the Donald Ashby case made international headlines because it revived the discourse on the relationship between copyright and freedom of expression. The case promotes an opportunity to view the different ways in which the two planes interact32. Copyright can engage and substantially interfere with the freedom of expression and speech depending on the scope of copyright and the nature of legal remedies in place. Therefore, copyright infringes on the free speech and freedom of expression by prohibiting acts such as communication to the public which is inherent engagement with the freedom of expression. The Australian copyright law has some safeguards that protect freedom of speech. One of the protections covers the expression of ideas and the fair dealing exception safeguards news reporting, reviews and criticism and satire. However, there are many occasions where speech falls outside the specific, purpose-based exception.33 The proposal for the adoption of the fair use exception argues that the system would provide flexibility to reflect on the rationale and significance of the freedom of speech. The doctrine would find a balance whereby the purpose of the use is evaluated against the nature of the use and the interests of the private property rights owner. Therefore, the doctrine would protect both the speech and the rights of the creator.34 Conclusion Basically, fair dealings means that the original private owner is uncompensated, and there is a lot of tolerance for uncompensated copied creativity today. In this digital age, a lot of copyright-protected material can be accessed through the internet and most of the trivial uses is accepted even by the copyright owners. However, when the material and the information is taken and commercialized without acknowledgment to the owner, it denies the private property owner an income. Hence, this is illegal. The Australian Copyright law has its foundation in the UK laws. However, the adoption of the Copyright Act in 1968 surpassed the UK laws in regards to the exception of fair dealing. The Act incorporates various provisions of international instruments such as exclusive rights for copyright owners, extending the scope of protection to computer programs, and many others. The Australian provision of fair dealing is more flexible when determining whether the use was fair. The courts have a tolerant interpretation of the fair dealing defenses, and the various amendments to the Copyright Act reflect the accommodation of the entitlements of the users and a generally progressive copyright system. The exceptions are detailed and more comprehensive than international instruments to provide precision and avoid pointless judicial recourse. The courts are lenient when interpreting the fair dealing exception which might not be fair to the interest of the private property. The Australian courts seem devoted to defining the specific purposes of the dealings that fit within the statutory groupings of uses rather than recognizing the diverse interests at stake. The Australian Copyright law system is among the best globally because it has shown flexibility by evolving over the years. Various amendments have provided for developments in technology, consumer behaviors, and business practices. The various reforms to the Copyright Act have advanced various unparalleled collaborations between various stakeholders such as the rights holders, libraries, and education institutions. The fair use doctrine is significant in the supporting advocacy and policy with regards to copyright exceptions. The principle represents copyright users and other people who rely on copyright exceptions. The doctrine is essential in countering the defense of fair dealings that is currently being championed by ill-suited defendants in Australia such as massive media broadcasters. The enterprises are not suited in backing the defense because they also have an interest in protecting their large portfolio of copyright materials. The fair use policy has worked in the US by playing the role of giving a voice for copyright exceptions. The Australian copyright law is very detailed and specific, and as such it is easy for a copyright owner to institute legal action in case of a copyright infringement. The doctrine of fair dealing provides for all the areas that do not constitute infringement. However, parody and satire are not fully covered hence the need to adopt the fair use exception. Bibliographies Books Shay, Richard Michael. Users' entitlements under the fair dealing exceptions to copyright. Diss. Stellenbosch: Stellenbosch University, 2012. Print. Burrell, Robert, and Allison Coleman. Copyright exceptions: the digital impact. No. 6. Cambridge University Press, 2005. Print. Journal Articles and Reports Attorney-Generalʼs Department “Fair Use and Other Copyright Exceptions: An examination of fair use, fair dealing and other exceptions in the Digital Age Issues Paper”. Issues papers. 2005. Austin, Graeme W. "EU and US Perspectives on Fair Dealing for the Purpose of Parody or Satire." (2016). Brudenall, Peter. "Fair Dealing in Australian Copyright Law: Rights of Access under the Microscope." UNSWLJ 20 (1997): 443. Australian Copyright Council, Research or Study: Information Sheet G053v08 (2012) www.copyright.org.au/find-an-answer/browse-by-a-z/. Australian Digital Alliance, and Australian Libraries Copyright Committee,. Copyright Legislation Amendment Fair Go For Fair Use Bill 2013. National Library Of Australia, Australia, 2013,. http://digital.org.au/sites/digital.org.au/files/documents/ADA%20%26%20ALCC%20Fair%20Go%20for%20Fair%20Use%20Senate%20Inquiry%20Submission%202013.pdf Australian Digital Alliance, and Australian Libraries Copyright Committee,. Australian Law Reform Commission Inquiry into: Traditional Rights and Freedoms: Encroachment by Commonwealth Law. National Library Of Australia, Australia, 2013. Brudenall, Peter. "Fair Dealing in Australian Copyright Law: Rights of Access under the Microscope." UNSWLJ 20 (1997): 443. Depoorter, Ben, and Francesco Parisi. "Fair use and copyright protection: a price theory explanation." International Review of Law and Economics 21.4 (2002): 453-473. Heiss, Anita. "Free Is Not Fair – Why Australians Should Reject Fair Use". Copyright Agency, 2017, https://www.copyright.com.au/fair-use/. Hua, Jerry Jie. "Balance of Interest in Copyright Systems and Imbalances Under Digital Network Environments." Toward A More Balanced Approach: Rethinking and Readjusting Copyright Systems in the Digital Network Era. Springer Berlin Heidelberg, 2014. 39-68. North, James. "Fair Use: Floodgates Or Fair Go?". Corrs.Com.Au, 2014, http://www.corrs.com.au/thinking/insights/fair-use-floodgates-or-fair-go/. Simpson, Shane and Potter, Richard,. Restrictions on Freedom Of Expression. Collectionslaw, 2012. http://www.collectionslaw.com.au/chapter-25-restrictions-on-freedom-of-expression Internet source Fitzgerald, Brian F, and John Gilchrist. Copyright Perspectives: Past, Present and Prospect. , 2015. Internet resource. Acts Copyright Act 1968. Australian Government Press.1968. Read More