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Wednesday, 23 October 1912

Senator KEATING (Tasmania) . - Not having had the opportunity of hearing the Vice-President of the Executive Council move the second reading of this Bill, I carefully read the official record of his speech, and I take this opportunity of congratulating him upon having taken a very comprehensive view of the whole subject of copyright, and of having endeavoured to express, and, to a large extent, successfully express, his sentiments with regard to the necessity for the Commonwealth bringing itself into line with other countries in this most important subject. We have to realize that copyright legislation affects, not merely publishers, printers, and authors, but readers. It may be assumed that in these days of universal education copyright legislation affects the whole community. As a matter of fact, this Bill is intended to harmonize our legislation with the Imperial legislation. I do not think that I am far wrong in saying that Imperial legislation on the subject of copyright, looked for and desired so far back as the seventies, never became, and was not likely to become a substantial fact until some portion of the British Empire had led the way. I think I am not far wrong in saying that in 1905 Australia led the way so far as legislation on the subject of copyright is concerned. Our Copyright Act of that year was utilized in Canada and in the United Kingdom when legislation was contemplated in relation to the matters which are therein dealt with. For the first time in English-speaking communities one Act recognised those rights which are ordinarily summed up in the term " copyright." We practically codified the law on that subject. We added to the existing, law certain provisions to meet, not the particular exigencies of t$ie time, but the peculiar circumstances that had arisen independently of, and apart from, any judicial decisions that had been given, and any legislation which had been enacted. In other words we brought our copyright legislation up-to-date. We attempted to realize the possibilities which might be offered to individuals to exploit: a certainfield to the detriment of one whose right in a particular production should be- protected. We made provision for what may be called personal injunctions.. Perhaps, the phrase is a new one, but I think the Copyright Act of 1905 introduced for the first time the new principle of what called the " personal injunction " - that is to say, an injunction restraining an individual from producing a certain work if some other person considered that his interests would thereby be affected. Every honorable senator knows what an injunction is. It is an order issued by one of the highest Courts in the land to restrain an individual, or a company, or a certain definite entity from following a particular course of action. In our Copyright Act we went beyond that. We realized that a particular individual might be hampered considerably in his application to our Courts of justice for the purpose of preventing others from infringing the right which he was entitled to enjoy. We were making precedents for the world, and for the first time we established by legislation the right of an individual who believed 'that he was likely to be prejudicially affected in a monetary sense, to come forward and " injunct " - if I may alter the phrase - any other person from utilizing the result of his brains to his detriment and disadvantage. Since 1905 the attention of the Imperial authorities has been directed to the necessity which exists for enacting something like systematic legislation on the subject of copyright. The Vice-President of the Executive Council in addressing honorable senators upon this subject referred to the number of legislative enactments which cover the matters dealt with by copyright in the United Kingdom. The number is alarming even to any lawyer. It is a very difficult matter, indeed, for anybody, under the most favorable circumstances, to ascertain how an individual stands in regard to his rights in any matter relating to copyright. Tn 1905 we attempted practically to codify the law in relation to copyright. Our attempts, however successful they may have been - and I believe that they have been very success ful in Australia - have induced the Imperial authorities to recognise that so far as they are concerned it is necessary that the copyright law should be made more clear, more intelligible, and more uniformthroughout the whole English-speaking world. The British Act contains provision for its adoption by any of the British Dominions or Dependencies. It provides for a modification of any of its provisions, or for an addition to them, to enable the local authorities to better administer their law of copyright, but only in relation toremedies and to certain matters of procedure for the punishment of offences. The general principles of copyright laware laid down in that Act, and it is competent for any British Dominion either to accept the Act, or to ignore it, or te* accept it with such modifications as, in the opinion of its representative body, or of its: Legislature in the case of a Dependency, are necessary to enable it to administer the law in regard to penalties and procedure. I indorse the action of the Government ir* adopting the British Act. We must recognise that when that Act was passed by the Imperial Parliament it was not to become law until a certain date. In other words, it was to come into operation on a day tobe proclaimed, namely, the 1st July last. It will scarcely be realized that any person in Australia who, since the 1st July- last, has produced a. book has had no copyright of it outside the copyright which is-, given to him by our Copyright Act of 1905. Previous to that date the Imperial Act extended to the author or publisher of any work in any of His Majesty's Dominions a copyright throughout those Dominions. I repeat that any work which hasbeen published in Australia since 1st July last has enjoyed no copyright, except that' which is given to it under our own Copyright Act.

Senator Shannon - Then the sooner we pass this Bill, the better.

Senator KEATING - Yes. We should adopt it as early as possible.

Senator Shannon - We are in a worse position than we were previously.

Senator KEATING - Unless Australianwriters have been very lax, I do not think that there is very much to complain about.. But the sooner we pass certain simple provisions taken from the British Act, the better it will be for the protection of our ownwriters. Having said that, I think no" person can accuse me of taking up a hostileattitude towards the British measure. But T rather regret that we have to adopt this Bill for one reason - because of the form of its draftsmanship. We all know that it is customary to attribute to a young country a little bit of unnecessary pride in its own performances ; but, allowing for that, I say without hesitation that if we had had to draft a similar measure in Australia we would have done it very much better. Our Act, I venture to say, is, to those interested in its operation, at least intelligible. On the other hand, to those who are interested in its operation, and to those who may be called upon to interpret it, the English Act that we are about to adopt is not always intelligible. I have experienced the greatest difficulty in interpreting some of its provisions, and possibly some of my learned friends on this side of the chamber have encountered the same trouble. The terms of the English Act, which we are bound to adopt, are totally different from the terms which we are accustomed to employ in Australia. In other words, th'at Act is what we would call out of date. Practically it is unintelligible to the ordinary person. It is drafted in such a way that it is impossible for a layman to follow it. As an illustration, let me read subclause 2 of clause 13 -

Where a person has before the commencement of this Act taken any action whereby he has incurred any expenditure or liability in connexion with the reproduction of any musical, dramatic, or artistic (work in a manner which at the time was lawful, or for the purpose of or with a view to the reproduction of any such work at a time when such reproduction would, but for this Act, have been lawful, nothing in this section shall diminish or prejudice any rights or interest arising from or in connexion with such action which are subsisting and valuable at the first day of July, One thousand nine hundred and twelve., unless the person who, by virtue of this section, becomes entitled to restrain such reproduction, agrees to pay such compensation as, failing agreement, may be determined by arbitration.

I venture to say that some of our latest admitted barristers and solicitors would have been capable of drafting that clause in a much more lucid way. This is the only regret which I have to express in connexion with the adoption of the English measure. I could quote other clauses which are far worse in respect to draftsmanship. The Government are not in the least degree blamable, because the Imperial authorities have simply laid down this law, and it is at the option of the Dependencies to adopt it or do otherwise. The Commonwealth Government have determined to adopt it, and we must take it with its faults of draftsmanship upon it. But I can honestly assure honorable senators that when the measure becomes law the legal profession are likely to be benefited to a far greater extent than was the case under the Act which we ourselves adopted. If one takes the trouble to look through the digest of the Commonwealth Law Reports in connexion with the copyright law of Australia, it will be found that very few cases have arisen under it. The language of the law is perfectly clear. It is lucid. It has been accepted. It has been acted upon. There has been no difficulty. But with all the complications that we are now introducing, I am a little afraid that the Commonwealth copyright law will not be so comprehensible to the ordinary citizen or to the individuals concerned in the matter as it has hitherto been. We shall, of course, have the advantage of the decisions given under a corresponding Act in England. That is a very real advantage. We do not have it in connexion with our own legislation. We have to wait for decisions of our own Courts, and there may be very few cases, comparatively speaking, in the Commonwealth. We shall also have the advantage of the business experience of people at Home who have been working under the English Act. Certainly those are advantages which must be properly estimated. The only disadvantages that I can see are that people will find in the future that the copyright law under which they have to work is a little less intelligible than hitherto. It may be said, "All the better for the lawyers." Well, I do not know. The position will be that the individuals interested will not be able to understand the law as easily as they can understand it at present. At the same time, we must recognise that there is no alternative. We have either to adopt this Imperial enactment, bringing ourselves into line with all other countries that are in the International Copyright Union, or else we must work copyright under our own legislation. It is of no use attempting to say that we can do so. If we are going to impose conditions with respect to copyright which are not recognised by the International Copyright Union, we shall be setting ourselves up as different from nearly every other civilized nation in the world. It should be our desire to come into line with them.

Senator de Largie - Does the honorable senator contend that all countries except Australia have identical copyright laws?

Senator KEATING - This is the first attempt to approximate to a uniform copyright law.

Senator de Largie - Is it the honorable senator's contention that the copyright laws of all nations are pretty well identical ?

Senator KEATING - That is the case with practically all European countries, but it is not the case with the United States and Canada, which have remained out of the International Copyright Union.

Senator E J RUSSELL (VICTORIA) - Suppose it were found necessary to amend this measure afterwards, would the proposed amendment have to be submitted to the Union first?

Senator KEATING - Only upon questions of international recognition. The main object is to prevent piracy between one country and another. The main basis of the existence of the International Copyright Union is to prevent piracy. At the present time Canada and the United States, which stand out of the Union, have been fields for wonderful activity on the part of pirates. Copyright involves the right not merely of reprinting original works, but of translating them under certain conditions ; and European authors find that their works are reprinted and translated in the United States and Canada without their permission. Amongst the provisions of this Bill is one giving the Minister power to authorize the translation of a work from any particular language. At present Continental writers, men of standing, talent, and experience, find that their works are sometimes translated in America, and then turned back into their own markets after recrossing the Atlantic. This practice operates to their detriment.

Senator Guthrie - Pirated works can be sent from the United States to Australia now.

Senator KEATING - There is a provision in this Bill to prevent the importation of pirated works. I think that if the Minister of Trade and Customs administers his Department carefully he will prevent the importation of pirated works.

Senator McGregor - He will treat them as prohibited imports.

Senator KEATING - I noted quite recently with surprise, according to a statement in Tasmanian newspapers, that the Minister of Trade and Customs decided that the writings of Guy de Maupassant should not be allowed to be imported into Australia. Afterwards, I understand, he allowed them to come in as long as they were imported for the use of students.

Senator de Largie - As long as we have a Review of Reviews published in Australia and another magazine of the same kind published in England, I do not see how we can take exception to other countries doing likewise; because that magazine is a piece of glaring piracy from cover to cover.

Senator KEATING - Having read a considerable number of the short stories of Guy de Maupassant, both in" the original and in English, I was surprised to learn that the Minister of Trade and Customs had determined to act as a censor in regard to them whilst he did not repress the works of an English writer like Eleanor Glynn and others of that kind.

Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel SirAlbert Gould. - Can the honorable senator tell us the names of their books?

Senator KEATING - I am referring to Three Weeks, Five Days, and books like that.

Senator Millen - Does the honorable senator recommend those books?

Senator KEATING - I should not mind recommending them for repression. I was asked how we can prevent the importation of pirated works published in the United States. There are provisions in this Bill enabling the Minister to prevent their importation. I entirely indorse the provision that the term of copyright should be for the period of the life of the author and fifty years afterwards. The period in the present Copyright Act is too short. Honorable senators will remember that when we were passing that measure in 1905 the Government of the day wished to give a longer term of copyright to authors. Another provision to which attention may be called is one giving statutory effect to the principle that copyright in unpublished manuscripts rests in the writer. It may be remembered that at that time we had a very long argument on clause 5 of the Bill, when Senator Symon rather ridiculed the idea that there should be introduced into it a statement of the common law of England as applicable to manuscripts. Under the English Act now in force, that common law right is recognised. It is made a statutory right that the common law of England should apply. I remember that a very heated debate took place here one evening in connexion with this matter, and it was only terminated by the tact of the Chairman of Committees. On that occasion the argument was as to whether it was necessary to set out in legislative form that the common law of England with regard to certain subjects should be applicable throughout the Commonwealth. I had the opportunity at that time of giving to the Senate the benefit of the views of Mr. Justice Clarke. He pointed out that the common law did not necessarily apply throughout the Commonwealth, although it might apply throughout the States, and the necessity for a particular legislative enactment of the common law was open to question. However, it is to be distinctly defined that the rights of an individual writer in his manuscript are to be conserved to him. That is to be made absolutely plain, definite, and binding. That has been one of the difficulties in connexion with copyright legislation for a number of years, because of the fact that copyright law, as a rule, does not operate until a writer begins to multiply or produce copies of his work. So far as rights in the original manuscript were concerned, copyright law did not touch them. That was the reason why we had, in the original Act of 1905, a provision that the common law of England with regard to unpublished manuscripts should be applicable throughout the Commonweal tn. The common law of England had only been decided in certain cases. It was that unpublished manuscripts should belong to the writers, or to their relatives if they were deceased, and that they were personal property of such a character as to be free from any obligations to which personal property of other kinds is subject in case of the death of the owner. This Bill, I am happy to say, lays down, as a matter of positive legislative enactment, that provision and principle with regard to unpublished literary manuscripts.

Senator E J RUSSELL (VICTORIA) - Suppose a man writes a play and submits it to a theatrical manager, is there anything to prevent the manager practically taking possession of it, as I understand is often done today ?

Senator KEATING - That is not a matter of copyright at all; it is a matter of the contractual relations between the writer and the manager.

Senator E J RUSSELL (VICTORIA) - Writers of plays have submitted their manuscripts to managers, who have appropriated them without payment.

Senator KEATING - If the writer of a play were fo forward his script to a manager, and the manager were to turn out a play without reference to the writer, and it could be proved to the satisfaction of a Court that it was substantially identical with the manuscript furnished to him, the Court would at once recognise that the writer of the play furnished the manager with the material, and would establish his right to such profits and interests as he might be entitled to. A manager could not pirate a play-writer's manuscript so long as it could be proved that the play produced was substantially identical with the manuscript.

Senator Guthrie - Then there is no need of copyright if damages can be recovered without it.

Senator KEATING - That would be only under the Statute, and there is need for copyright. I mentioned just now the common law of England with regard to literary manuscripts. The distinction between copyright and proprietorship arises when one begins to publish. A writer may hold a number of writings of his own. They are his own property, but if he chooses to publish them, at that moment they become the subject of copyright law. If he does not publish them, and subsequently leaves the country or dies, his right in his unpublished literary manuscripts does not come within the domain of copyright law ordinarily. But this Bill makes provision to cover that case, and that is why I congratulate the Government upon its introduction. It provides for the protection of those interested in or responsible for writings, and the Government have very wisely, in my opinion, introduced these provisions. Another matter has reference to the development which has taken place since we passed the Copyright Act of 1905 in connexion with mechanical reproduction, in the case of views by the cinematograph, and in the case of musical productions by the gramaphone. The person who produces anything in the nature of music or a song looks naturally for protection from the country in which he resides. As a matter of fact, he gets it, so far as the publication of the score is concerned. No one can republish the score. Any honorable senator walking down the street will see music exhibited in windows inscribed "Copyright." "Song by so-and-so."

Senator de Largie - Copyright is granted in many cases for mere imitation.

Senator KEATING - That may be.

Senator de Largie - Is it not possible to so amend this Bill as to prevent the copyright of mere imitations, or to prevent; a writer using a title which he has no right to use?

Senator St Ledger - There is a copyright in book and title.

Senator de Largie - Suppose Senator St. Ledger publishes a book entitled " Australian Socialism," and that the book is about anti-Socialism, how is it possible to guard against a misnomer of that description?

Senator St Ledger - The honorable senator might perhaps leave it to Senator St. Ledger to enforce his copyright.

Senator de Largie - The matter is important. People reading the title of the book may be led to believe that it deals with Australian Socialism-, when it is a book on anti-Socialism.

Senator KEATING - After these very interesting observations I expect to see some amendments proposed to the Bill by Senator de Largie. When they are put into print I am sure that honorable senators on both sides will give them consideration. I am glad that the Government have been good enough to retain in this Bill, allied with the measure they have introduced, the provisions I referred to in the nature of personal injunctions. I refer particularly to clauses 15, 16, and 17 of the Bill, under which the owner of a theatre is liable to be injuncted, if I may use the term, from allowing his theatre to be used for the production of anything in the nature of a piracy of a particular work. Honorable senators will see that the marginal note to clause 15 reads, " Penalty for permitting unauthorized performances in theatres." I am glad to see that, notwithstanding the fact that the Government have adopted the English Act almost in its entirety, they still adhere to these particular provisions which, as I said in the earlier part of my remarks, are peculiarly Australian. They have been admired and recognised throughout the whole world as affording individuals an opportunity to secure redress instantly which they would not be able or entitled to get from any other part of the world. When in other places recourse has been had to the Courts in such cases they are found powerless to give redress, because the offenders have left the jurisdiction of the Court. ' Attention might be drawn to the importation of copies of works. Senator Vardon has already referred to the matter at some length, and it is not necessary that I should elaborate it. I hope that the VicePresident of the Executive Council realizes the difficulties presented in connexion with the matter. I feel sure that there is no intention on the part of any honorable senator who wishes to secure an amendment of the Bill to in any way interfere with its efficiency. The only object will be to strengthen it, and make it more purposeful in the interests of the ideal and policy of the Government and people of Australia. I earnestly hope that consideration will be given to the particular amendment to be proposed by Senator Vardon in connexion with the matter to which I have referred. Another matter that calls for attention is the question of reciprocity with other countries. I have already said that without the intervention of Great Britain it would be impossible for us to secure reciprocal relations with other countries, the necessity for which is growing every day. We are faced with two alternatives. Are we to adopt this measure or not? If we do not adopt it we shall be in the peculiar position of having a very clear, intelligible, up-to-date, and logical copyright code, but applicable only to Australia itself. If we adopt this measure, with the provisions the Government have added to it, we shall have a Bill which will give us at leastrecognition practically in every civilized country in the world, with 'the exception of the United States of America, where they have chosen for reasons of their own to follow their own path ; we shall adopt a principle which will enable our writers and our people to avail themselves of every advantage in literature, not only within our own country, but also in those countries which have this reciprocal arrangement with us, and, at the same time, we shall be able to take advantage of every arrangement which Great Britain may make with any other Power that is not at present a party to the International Copyright Convention. We shall lose nothing, so far as our writers are concerned. If we hold aloof, the Australian writer will remain in. the peculiar position in which he stands at present. If he has written anything since 1st July, when the British Act came into operation, his copyright exists only throughout the Commonwealth. Anybody can pirate it in New Zealand, England, and any of the countries that are parties to the International Copyright Convention. If we adopt the measure, with these precautions, then, I think, with one or two necessary amendments, we shall stand in exactly the same position as Great Britain. We shall have every advantage that it enjoys. We shall lose nothing, and we shall have the opportunity of extending our reciprocity, should the opportunity be afforded to Great Britain, with our brothers in Canada and the people of the United States. Everybody who has followed this subject knows that, with Canada, it has not been a matter of domestic policy at all. It has been absolutely a matter of immediate contiguousness to the United States. Because the latter country has refused to come into the International Copyright Union, and because of the capacity it has for flooding Canada with publications and re-publications of copyright works, Canada has found that it would be impossible to stand up to an Imperial Copyright Act without keeping upon its borders practically a line of men to observe the introduction of books. As a matter of practical experience, Canada has found herself in the peculiar position that, though it would like very much to be in the International Copyright Union,' its geographical situation has prevented it from doing so.

Senator de Largie - What about the position of the United States?

Senator KEATING - -I have just stated that that country has deliberately stood out of the International Copyright Union.

Senator de Largie - And it seems to nourish by standing out.

Senator Walker - Many of the publishers do give something to the copyright holders.

Senator de Largie - Perhaps the greatest country to-day for publications is the United States.

Senator KEATING - That may be ; but if the honorable senator agrees with the policy of the United States in this matter, I may tell him that the highest and the best authorities on copyright in that country Copinger and other American authorities - absolutely discountenance that position. If my honorable friend thinks that it is the best position, he is perfectly free to vote against this Bill, and to take up the opposite view. I regret very much that we are not able to make certain provisions which I should like to see. I certainly think that, in the present conditions, the Government are doing very well in making the provisions they have made for adopting the Imperial Act, and getting for Australia the benefit of the International Copyright Convention, and our own special provisions in clauses 15, 16, and 17. I believe that if we adopt the Imperial Act, with the additions and the modifications contained in this measure, subject to one or two amendments of a minor character, Australia will stand out conspicuous to the world as the foremost nation in the domain of copyright legislation.

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