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Thursday, 4 May 1989
Page: 1762

Senator HILL(11.04) —Section 40 of the Copyright Act 1968, as the Minister for Justice (Senator Tate) has indicated, allows fair dealing `with a literary, dramatic or artistic work, or with an adaptation of literary, dramatic or musical work, for the purpose of research or study' without infringement of the copyright in the work. The Act sets out the matters to be taken into account in determining whether the usage of that material is so limited. These matters are set out in proposed new section 103e (2), which states:

For the purposes of this Act, the matters to which regard shall be had in determining whether a dealing with an audio-visual item constitutes a fair dealing for the purpose of research or study include:

(a) the purpose and character of the dealing;

(b) the nature of the audio-visual item;

(c) the possibility of obtaining the audio-visual item within a reasonable time at an ordinary commercial price;

(d) the effect of the dealing upon the potential market for, or value of, the audio-visual item; and

(e) in a case where part only of the audio-visual item is copied-the amount and substantiality of the part copied taken in relation to the whole item.'.''.

That adopts the type of language used in section 40 (2) of the principal Act.

I think the answer is involved in the interpretation of the word `work'. As I understand it, there are limitations as to how that has been interpreted. It was the view of the Vice Chancellor's Committee that section 40 as a whole has not been interpreted sufficiently widely to allow usage in this form for audiovisual items. It might be helpful if the Minister were to say to us that this practice is more useful than it used to be, and that the court will be directed to take into account the learned advice of the Attorney-General in these matters that, in the view of the Government `work' should be interpreted sufficiently widely to include audiovisual items. It might also be changing the law; I am not sure about that. I look to the definition of `work' in the existing Act and I see that it means:

a literary, dramatic, musical or artistic work.

That does not advance my argument far at all. Therefore, I presume that one needs to go one step further and look to the precedents. The Minister no doubt is on top of those, having sitting alongside him a team of advisers. No doubt he will tell us whether `work' has been interpreted by the courts to allow audiovisual items of the type that we propose to include in this proposed new section to be permissible under the existing regime.