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Thursday, 5 October 1911

Senator KEATING (Tasmania) . - I listened with interest to the remarks of the Vice-President of the Executive Council. I hope that honorable senators will realize the steps which they are asked to take in adopting this measure. It was only in 1905 when there was introduced to the Senate a comprehensive measure to deal with copyright - a far more comprehensive measure than any which had been' submitted in any portion of the British Empire. It was subjected here to a considerable amount of criticism. Whereas" it was intended to extend to other parts of the British Empire, and to other nations, re,ciprocal rights in the Commonwealth, and whereas it was also provided that copyright could be obtained in the Commonwealth on compliance with a set of simple conditions, the sense of the Senate was strongly expressed against granting Commonwealth copyright on such easy terms. The sense of the Senate was emphatically expressed on the project of including amongst the. conditions of obtaining copyright some provisions with regard to first production, first printing, and matters of that -kind in the Commonwealth itself. If - these condition and limitations on the acquisition of copyright were considered in 1905 a forward step on the part of the Commonwealth ; if they Were considered necessary and advantageous, and the sense of the Senate was, so strong in that regard that it amended the Bill, then this measure can only be branded as distinctly retrograde. I speak, without any feeling in the matter, because in 1905 I had charge of a. measure which contained many provisions similar in purport to the main provisions of this amending measure, but the Senate was strongly, after considerable debate, against such a wide extension of Commonwealth copyright. I think that the arguments, which were used as to the conditions^ which should be imposed on the acquisition of Commonwealth copyright were of such a character as tq convince honorable senators^ and apparently were of such strength that really one would feel compelled on this occasion to call for some more direct answer to them now than the attempts with which the Senate seemed to be dissatisfied then. As I said, the Bill of 1905 went further than the Act which we have on the statute-book : it went further in the direction pf this measure, but the Senate's sense as to the necessity for printing within the Commonwealth, and other conditions of that character, was far too strong for the measure to pass in the form in which it was introduced. I intend to be very brief in my remarks on the second reading, but in view of the circumstances to which I have referred, and of the further fact that this means a very substantial and farreaching alteration of the law, I should certainly like to have an assurance from the Minister that this measure is not _ to go through the Senate without receiving full deliberation and consideration.

Senator McGregor - Hear, "hear.

Senator KEATING - If the noticepaper had been fuller than it is, I certainly would have asked the Minister after his speech to consent to a motion for the adjournment of the debate. I do not propose to take that course in the circumstances, but I certainly hope that we shall not get through the Committee stage without honorable senators having a full opportunity of realizing what the significance of the measure is. It has been circulated amongst honorable senators only this morning. If we had that alone to consider, the importance of the subject and a recollection of the extensiveness of the debate upon this or similar' provisions previously considered should be a sufficient warranty to Ministers for deferring the consideration of the Bill in Committee for some little time, in order to enable honorable senators to acquaint themselves with its provisions and the effects of their adoption. But we have further to remember that a Copyright Bill has been introduced in the House of Commons quite recently, and inasmuch as this particular measure is primarily and mainly designed for the purpose of harmonizing our legislation with that of the United Kingdom and other portions of the British Empire, as well as for entering into reciprocal relations with other countries, there is an added reason in support of the slight delay in the consideration of it which I suggest. I am indebted to the courtesy of Ministers for a copy of the Bill which has been introduced in the Imperial Parliament. I notice that it was presented by Mr. Sydney Buxton, supported by Mr. Harcourt, Mr. Solicitor-General, and Mr. Tennant, and ordered by the House of Commons to be printed on the 13th July last. It is not yet the law of the United Kingdom, but it is a Bill which is likely to engage considerable talent in discussion in respect of most of its important provisions. I need only remind honorable senators that ever since 1875 the necessity for a comprehensive Copyright Bill for the United Kingdom, and for such of His Majesty's Dominions as it would be applicable to, has engaged the attention of the Imperial Parliament. Commissions have been appointed in which men of recognised eminence in this branch of the law, such as Lord Thring, Mr. Scrutton, and others, have taken an important part. Measures recommended by the Commissions have, from time to1 time, been submitted to the House of Commons, but in view of the fact that measures dealing with education, the poor law, hotelkeepers, and other matters engaging more fully the attention of the electors have had to be considered, the House of Commons has not had time to deal with this subject. There is, however, an attempt being made at the present time to put through the Imperial Parliament a comprehensive Copyright Bill. We have it in evidence that it is the intention, so far as possible, to extend the advantages of its provisions throughout the Empire. It is proposed to extend them to all the Colonies of the Crown, except where specially exempted. It will be open to the selfgoverning Dominions, by resolution or otherwise, to adopt the Bill in its entirety, or with such modifications as to procedure, registration, and some other minor matters of the kind as they please, or to ignore it altogether.

Senator St Ledger - But there are consequences of ignoring it.

Senator KEATING - Undoubtedly. There are international consequences which would exclude our people from privileges in the countries that are signatories to the Berne Convention. These are matters which should be very seriously considered, and the time between the circulation of the Bill amongst honorable senators and itsproposed consideration in Committee tonight is certainly insufficient to enable us to approach this matter with the full knowledge and the seriousness that the occasion demands. With regard to the criticism of Senator St. Ledger as to the provision, I think he said of the Berne or Berlin Conference, with respect to unpublished literary manuscripts, I may remind the honorable senator that section 7 of our existing Act deals with such manuscripts. It will be within the recollection of some honorable senators that, in the discussion of that measure, Senator Symon severely criticised the inclusion of such a provision on the contention that it purported to do what was unnecessary, and what was already common law throughout the Commonwealth. The section provides that -

Subject to this and any other Acts of the Parliament, the common law of England relating to proprietary rights in unpublished literary compositions shall, after the commencement of this Act, apply throughout the Commonwealth.

Senator St Ledger - That does not go as far as the Berne Convention.

Senator KEATING - I think it absolutely protects those who are interested. It must be understood that there is not, and cannot be, any such thing as copyright in unpublished literary compositions. It only subsists in something that is published, that has gone forth, or been given or performed. Anything of a private character, such as an unpublished literary manuscript, cannot be the subject of copyright.

Senator Vardon - The author's executors may publish his manuscripts, and obtain copyright.

Senator KEATING - That may be so; but there is an ordinary common law position with regard to a matter of that kind. The unauthorized publication of unpublished literary manuscripts can be restrained by common law injunction. Their publication would not, at common law, give the executors copyright, because copyright can only subsist in the author, and the executors wouldnot be the authors of the manuscripts. It might be necessary by statutory provision to vest what would have been the author's rights in his executors. So far as that aspect of the matter goes, Senator St. Ledger's criticism is worthy of consideration. But there is another matter to which I invite the attention of Ministers, and that is that since we passed our Copyright Act of 1905 there has been an enormous development in what I may call the reproduction generally of matters which are the subject of copyright. I do not now allude to books, or to artistic works, such as statuary or paintings. There are embraced in our Copyright Act such things as dramatic right, the right of performance of a drama, the right of performance of certain music in any notation, the right of transposition of music, and matters of that kind. Since 1905, wonderful strides have been made in the development of mechanical means of reproduction, and it was decided in England some ten years ago in the case of Boosey v. White that the reproduction by means of a mechanical device or instrument known as the AEolian of certain musical compositions, the copyright of Boosey and Company, the well-known music publishers, was not an infringement of their right. Those who are responsible for the introduction into the House of Commons of the Bill to which I have referred realize what the . AEolian and the Pianola are doing, and may do, under a decision of that kind. They realize that these devices are calculated to infringe proprietary rights in copyright, and they propose to make provision against infringements of that kind. The same thing applies to the use of the gramaphone in respect of the infringement ofa lecturing right. The gramaphone might be used, I was going to say, as an innocent, but probably more correctly a non-innocent, instrument for the infringement of such a right, whilst the person who used it might contend that he had not really broken the law, and the persons whose rights were infringed would have no remedy. These remarks apply also to the cinematograph, and to other instruments and mechanical devices for reproduction of matters which may be the subject of copyright.

Senator Vardon - Can moving pictures be copyrighted?

Senator KEATING - Under the English Bill, such a provision is made in connexion with the matters which copyright may include. Section 13 of our Act provides that -

The copyright in a book means the exclusive right to do or authorize another person to do all or any of the following things in respect of it : -

(a)   To make copies of it.

(b)   To abridge it.

(c)   To translate it.

(d)   In the case of a dramatic work, to con vert it into a novel or other nondramatic work.

(e)   In the case of a novel or other nondramatic work, to convert it into a dramatic work ; and

(f)   in the case of a musical work to make any new adaptation, transposition, arrangement, or setting of it, or any part of it, in any notation.

We then set out succinctly, as Senator McGregor has indicated, all the different rights proposed to be given, such as the performing right in dramatic and musical work, the lecturing right in lectures, and so on. The English Bill provides that -

For the purpose of this Act " copyright " . . shall include the sole right.

(a)   In the case of a dramatic work, to convert it into a novel or other nondramatic work.

(b)   In the case of a novel or other nondramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise.

(c)   In the case of a literary, dramatic, or muscial work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered.

So that the owner of the copyright, or performing right, has alone the right to make films, to make or have made rolls, or other media by which music is performed by mechanical devices. Later on in the Bill, in clause 19, we find that it is provided that-

1.   Copyright shall subsist in records, perforated rolls, and other contrivances by means of which sounds may be mechanically reproduced in like manner as if such contrivances were musical works, but the term of copyright shall be fifty years from the making of the original plate from which the contrivance was directly or indirectly derived, and the person who was the owner of such original plate at the time when such plate was made shall be deemed to be the author of the work.

2.   It shall not be deemed to be an infringement of copyright in any musical work for any person to make within the parts of His Majesty's Dominions to which this Act extends, records, perforated rolls, or other contrivances by means of which the work may be mechanically performed, if such person proves -

(a)   that such contrivances have been previously made by or with the consent or acquiescence of the owner of the copyright in the work; and

(b)   that he has given the prescribed notice of his intention to make the contrivances, and has paid in the prescribed manner to or for the benefit of the owner of the copyright in the work royalties in respect of all such contrivances sold by him, calculated at the rate hereinafter mentioned.

This provision is made so that the owner shall not be compelled to grant that right to his own detriment. It is obvious, therefore, that the march of intended legislation in England comprehends within its purview, as possible subjects for copyright, all these different matters ; and I should certainly have expected that the Government would have taken steps to introduce in an amending Copyright Bill such provisions in connexion with them as the occasion demands. As to how interested parties stand in relation to copyright or performing right I am not in a position to say, but certainly for some time past I have had in view the possibility of our own Copyright Act being amended so as to embrace such provisions as I have referred to. During the recent recess - in about February last - I had myself prepared some material upon this very subject, but I appear to have mislaid it, or to have left it in Tasmania. It was designed as a skeleton measure for the amendment of the Copyright Act, and included provisions in relation to mechanical reproduction. I had hoped that the Government would realize the advisableness of introducing provisions into this amending Bill to meet that class of case. Otherwise it is evident that this amendment of the Copyright Act will have to be followed shortly by another. Surely we do not want to load up our statute-book with amending Act after amending Act year after year. We do not want to have one principal Act with a tail of amending Acts trailing behind it like a comet. I hope that the Government will therefore see their way, before this Bill is finally dealt with by the Senate, to include in it such provisions - they need not be very lengthy - as will enable persons to be protected in the enjoyment of their performing rights against infringement by means of mechanical devices. I also trust that they will insure to such persons the sole right of preparing or having prepared the media for mechanical reproduction or for authorizing other persons to prepare those media upon terms that may be just to the original owner. I commend these considerations to the Minister in charge of the Bill. I trust that he will not take the course of pushing the measure through the Committee stage this evening. In this, the first amendment of the copyright law which has been brought before Parliament, I should like to see such provisions inserted as the circumstances of the times demand, as is clearly evidenced by the express intention of the Imperial Parliament in the Bill now before it, and from which I have just quoted.

Question resolved in the affirmative.

Bill read a second time.

In Committee :

Clause 1 agreed to.

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