Use of Generalist Fair Use Defence in Australian Intellectual Property Law

Student Name: Peter Foster

Student Number: 202117722

Degree: Bachelor of Laws

Course: Intellectual Property Law

Course Code: LS331

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 obiter. 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 Ð'- 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 Ð'- 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 Ð'- 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 s32 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 s32(1) relating to unpublished works, s32(2) relating to published works, s89 relating to sound recordings, s90 relating to films, s91 relating to television broadcasts and sound broadcasts and s92 relating to published editions of works; and finally originality, s32 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