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Wednesday, 20 June 1906

Senator GIVENS (Queensland) .- By his recent remarks, the Minister has shown that he is an adept by clouding the issue by a mere mass of irrelevant verbiage. Every one of the evils which he says will follow from the adoption of this amendment would also follow from the adoption of an exactly similar provision in the Copyright Bill of last year. But we did not hear a word of this kind from the Minister when the provision was under consideration.

Senator Keating - That dealt with- copyright in a different subject, and if the honorable senator had been here he might have heard my remarks on that point.

Senator GIVENS - I have been here during most of the time. If under my amendment everything employed or used in the manufacture of a pirated design can be forfeited, then under section 49 of the Copyright Act everything employed or used in theproduction of a pirated book, from a steam engine or press down to the smallest particle of type which was used, can also be forfeited. In his previous speech the Minister adopted the extraordinary argument that, because in England the Judges had laid down certain law, there is no reason' for its embodiment in our Statute on the subject. I think it is just as well to embody our law in black and white upon the statute-book, rather than have something which is dependent upon the varying opinions of Judges such as most of our common law is. Many attempts have been made in different countries to consolidate the common law, and that huge task, I believe, has been successfully performed in only a few cases. That all comes of 'saving it to the Judges to say what is right in equity.

This Parliament has been intrusted by the people of Australia with the duty of prescribing what is right, and we should not shirk that responsibility. We ought not to leave to any Judge the interpretation of the wishes of the people of Australia in this regard- Senator Keating has quoted a case cited by Coppinger, who is an accepted authority, wherein, a Judge held, before it was the law of copyright, that pirated goods were liable to forfeiture.

Senator Keating - The decision had nothing to do with the question of copyright; it related to designs in respect of which there was no express provision.

Senator GIVENS - The Judge held that the Court had power to order the forfeiture of the goods, and he gave his decision accordingly. If that be good few, why .not give it a place on our statutebook ? The objection raised by Senator Keating that, under the proposed new clause, valuable goods might be forfeited because thev bore a certain design, is no argument against its adoption. The possibility of such an occurrence would deter unscrupulous people from pirating a design and placing it on valuable goods. We know, for instance, that designs on carpets are exceedingly valuable. A man who pirates a design and applies it, say. to a valuable piece of carpet deserves to lose that carpet, just as the publisher of a pirated work deserves to lose the paper on which he has printed the pirated matter.

Senator Gray - The honorable senator would not enumerate all the offences to which this should apply.

Senator GIVENS - I have copied- from the Copyright Act the phraseology adopted by the Government when that measure was before us last" year, making only the verbal alterations necessary to cause the provision to apply to designs instead of pirated books or pirated artistic works. If such a provision is desirable in the one case it is equally desirable in. the other. Why should not the inventor of a valuable design have the same protection as is afforded the author of a book? In the Copyright Act we go much further than I propose. We actually prohibit the importation of any pirated goods. The Copyright Act provides that in the case of a pirated artistic work the authorities shall seize, not only the actual painting, but the canvas on. which it appears. The principle is the same, whether it be applied to a canvas worth only is. or a carpet worth jos. a yard. If a manufacturer applies a pirated design to a carpet, that carpet should be seized in the same way as we seize the paper or canvas, on which a pirated artistic work has been painted.

Senator Sir JOSIAHSYMON (South Australia) [5.50]. - I think that my honorable friend would do well to consider the terms of his amendment. They do not appear to me to carry out his own intention, and they will undoubtedly introduce into the administration of this Bill' an element that will render it difficult to carry out. In the first part of his amendment he proposes that all goods to which any pirated design has been applied - there is no definition of " pirated design " in this Bill, but we know what is meant - shall become the property of the owner of the design. There is a great difference between a shipment of books and a shipment of carpets. It would be a novelty if in these circumstances a shipment of carpets were handed over without an order.

Senator Givens - There would be an order of the Court.

Senator Sir JOSIAH SYMON - No; the amendment provides that the goods are to be deemed the property of the owner of the design.

Senator Givens - But the owner of the design would have to prove his claim by action or other lawful method.

Senator Sir JOSIAH SYMON - He would have only to prove that he was the owner of the copyright in the design. That having been done, the whole shipment would be absolutely handed over to him.

Senator Givens - And under the Copyright Act a shipment of books would be dealt with in the same way.

Senator Sir JOSIAH SYMON - That is a verv different thing. The honorable senator does not say that the carpet and the work of weaving the design on the carpet belongs to the owner of the design ?

Senator Givens - Nor does the paper, and the making of the paper, and the binding of pirated books belong to the author.

Senator Sir JOSIAH SYMON - Quite so; but the author's brains are. so to speak, in the book. The desire of the honorable senator is to increase the remedy that the owner of a copyright design shall have against any attempt to pirate it. I suggest to him, however, that he should not press his amendment. In its present form it does not carry out his intention,. If it has any effect it will have the serious one of causing goods to which the owner of the copyright in the design has no claim to be handed over to him.

Senator Givens - And the author of a book that has been pirated has no claim to the paper on which the pirated edition has been printed.

Senator Sir JOSIAH SYMON - Then how is this provision to be enforced? If the honorable senator considers the matter, he will find that a person whose copyright in a design is infringed may seek damages and an injunction. In a matter of that kind the usual remedy is that the Court grants an injunction, and gives all the consequential relief necessary.

Senator Givens - The honorable and learned senator would give the Court a great deal of latitude.

Senator Sir JOSIAH SYMON - That of which I speak is done every day. If application be made for an injunction to restrain an infringement of copyright, the Court immediately gives the fullest relief that justice demands. In a case such as that to which Senator Givens has referred, the relief would be not to hand over a whole shipment of carpets to the owner of the design, but to destroy the design or order the goods to be re-exported. It would be an easy matter for a man to set up in business for himself if we decided that all goods to which was applied a design of which he was the owner should belong to him.

Senator Best - The great point is that a man might innocently acquire carpets, and so forth, to which a design had been wrongfully applied.

Senator Sir JOSIAH SYMON - That is another point. A man might quite innocently import carpets to which a pirated design had been applied. It is provided that there shall be no infringement, for the purposes of a civil or a criminal remedy, unless the offence is knowingly committed.

Senator Keating - But the amendment goes further. It does not take such knowledge into consideration.

Senator Sir JOSIAH SYMON - " Knowingly " ought to be part of the essence of the offence. The obvious remedy in the case of a book which has been pirated is 1 that it should be handed over to the author, and that the man. who has infringed the copyright of another man's brains should have inflicted upon him the penalty of losing the paper on which the book is printed, and so forth. The position in re- gard to designs is," however, entirely different, the design being only pari of that which constitutes the complete production.

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