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Friday, 26 July 1912

Senator McGREGOR (South Australia) (Vice-President of the Executive Council) . - I move -

That this Bill be now read a second time.

In moving the second reading of this Bill, I feel that I am taking a great responsibility on myself, because to deal with a matter of this kind requires a knowledge of all that has been done in the direction of protecting authors and artists in the past by copyright legislation. Individuals who spend their lives in the authorship of books, or the production of artistic works, do as much for the country as any other section of the population. As we are always prepared to protect the person who accumulates wealth, and invests it in his own interests, and- the interests of his family, or even of his posterity,, it is equally our duty to protect the poor author or artist, who may, through a life of trial and tribulation, bring into existence something that gives pleasure and profit to the rest of mankind. In the past attempts have been made, not only in Englishspeaking countries, but in other parts of the world, to give some protection to such people ; but so inconsistent in some cases with justice, so difficult of administration, and so faulty in almost every respect has been the legislation of this description, that I may inform honorable senators that in England there were no less than seventeen Acts repealed, and four amended, in order to bring the law to its present state of perfection. We have ourselves attempted to do something in this matter. In 1905 we passed a Copyright Act, which, at the time, was considerably in advance of any legislation of the kind enacted, even in Great Britain itself. When we speak of Great Britain in this connexion, we include her Dominions, and her copyright legislation has been very interesting. As far back as 1886, an International Copyright Conference was held in Berne. Decisions were come to there, and it was ultimately agreed that certain provisions should be made for the protection of those who labour in the authorship an'd production of literary and artistic works of all kinds. In 1887 Great Britain gave her adhesion to the decisions of that Conference, and passed legislation accordingly. In 1896 there was an additional Act passed, known as the Additional Act of Paris, though it was pot an Act of Parliament in the sense in which we generally understand the term. It was really another Convention in connexion' with copyright. In 1908 an International Conference was held at Berlin. In 1909 a very strong Committee was appointed by the British Board of Trade to make an inquiry into the Berlin Convention and the state of British copyright law. They went into the matter fully, and came to the conclusion that the Convention should be adhered to, and the British law amended accordingly. But before the British Government were prepared to take definite action on the recommendations of such an important body they decided to have a conference at which representatives of the different Dominions should be present. In 1910 that Conference was held. The representative of the Australian Dominion was Lord Tennyson, a nobleman with Australian experience, and I feel sure that the great majority of the people of Australia would be very well satisfied with his representation at a Conference of that description. As the result of the work of the Committee of 1909, and the Conference of 1910, in the latter part of 19I0 a Copyright Bill of a very liberal and advanced character was introduced in the Imperial Parliament. It was thoroughly discussed, but it was not until 191 1 that it was passed, and it was to come into operation on the 1st July, 1912, or on an earlier date to be fixed by proclamation. As no proclamation was issued by the British authorities the Act came into operation on the 1st July, 1912. I am sure that those who have Imperial instincts, and desire that some kind of uniformity in respect to copyright and other matters of that description should exist throughout the British Dominions, will be pleased to know that the Government, in proposing to repeal our Act of 1905, wish to adopt in its entirety the Act which was passed by the Imperial Parliament in 1911.

Senator St Ledger - Hear, hear !

Senator McGREGOR - I knew that some honorable senators would be more satisfied than others, and I am very glad that I have had the assent of an authority who, undoubtedly, has some knowledge of copyright - one who is himself an author - and would put a very high estimate on the value of protection of this description. I want now to point out the advantages. Of course, no legislation is worth having' unless it gives some advantages to the people of the country in which it is passed. The first principle laid down by the British Act is that copyright is an Imperial matter. Although it- is considered an Imperial matter by the British authorities yet they are prepared to give every latitude to the Dominions within the Empire. They did not pass legislation of a character such as we are dealing with today and say to the Dominions " You must adopt this absolutely and nothing else," but they desire that we should recognise . the advantages of the Imperial Act. If we think it advisable to adopt it, we have the power to do so, but if we think otherwise we can still remain outside the operation of the Imperial legislation. I consider that the greatest advantages may accrue to the Dominions if they adopt the Imperial Copyright Act. They will get the benefit of the experience of men who have lived and worked in Great Britain in the direction of protecting those who deserve it, those in whose interests we are working to-day. If a Dominion decides to remain outside this legislation the Imperial authorities are not going to compel them to adopt it. If we remain outside we shall not have the advantage of the protection which we might otherwise obtain, nor shall we have the benefit of the valuable decisions which will be given under this or asimilar law in Great Britain. With respect to foreign countries the Imperial Act makes every provision for the protection of the Dominions in those countries. The majority of the countries in Europe - France, Germany, Sweden, Spain, Portugal, Italy ; in fact, most of the principal countries - are in the Berne Convention, and the protection of this Act would extend to our authors and artists in all the countries which are in the Convention. The Imperial Government has an arrangement with. Austria-Hungary, and I may mention here that there are countries outside the Convention. Russia, for instance, is one of them, although there are very great hopes that in the near future this great and important country in Europe will also join. Holland, too, is outside the Convention, and so is another great country, the United States. I do not know that there is any great possibility of the United States coming under an arrangement with other countries in the world, principally because her Copyright Act contains a provision that everything copyrighted in America must be produced there.

Senator St Ledger - Does America still hold to that?

Senator McGREGOR - Yes. I donot know whether in the near future any yielding on that point may be possible, but as the honorable senator knows, Scrutton, one of the greatest writers on this question, declares that the provision is a blot on the escutcheon of the United States. Whether that is so or not, or whether, like another great Power, they may take thought and amend it in the near future

I cannot say. The Imperial Copyright Act gives certain latitude to the Dominions to make laws on the subject if they like, to remain outside the legislation, and protect themselves in various directions; that is, if under the Convention and the adoption of the British principles of copyright, they are prepared to give privileges to foreign countries. Great Britain has to be satisfied that those privileges or advantages will be extended to the Dominion giving such privileges to anybody else. Not only have we our own power to obtain advantages, but we have the power of the British Empire behind us when we ask for anything which is just and fair from another country. Let me now point out some of the advances made by this Imperial Act. One advance is that contrivances by means of which sounds may be mechanically reproduced have been provided for. These articles are of very recent origin, and, consequently, they could scarcely have been provided for previously. Having come into existence they play a very important part in the work of the world to-day, that is in connexion with the reproduction of music and other work of that description. I have known honorable senators to be very anxious that something should be done by the Federal Parliament. 1 believe that we are all anxious that something should be done in connexion with the relationship which should exist between musical authors and those who reproduce music by mechanical contrivances. This new British legislation has provided- for that in different ways. So far as the reproduction of a musical work already published is concerned, no one infringes the copyright of a musical author by making a contrivance by means of which it may be mechanically reproduced, provided he gives the owner of the copyright notice and pays the prescribed royalty. That is. any music produced before the adoption of the latest British Act can only be used in that way when the users have given notice to the owner of the copyright and paid royalty. With regard to musical works produced after the commencement of the Act, there are also other conditions with respect to the manner in which any copyright can be availed of in that direction. Another advance of the Imperial Act is that the new legislation applies to architecture. Some of those who have had to do with copyright legislation have always strenuously objected to architecture being included, or to anything in connexion with architecture being considered a work of art. Under this new British legislation, even the architect is protected if he produces something novel in the way of designs for buildings. But so far as ordinary copyright is concerned they must be placed in a different position altogether; because the infringers of copyright have to give up to the owner everything which they have used in the direction of infringement, and it would be very difficult for an architect to give up a building. Again, infringements of copyright have to be produced in Court. It would be rather difficult for an architect, or the owner, to produce the building in Court. Therefore, architecture is treated differently, and instead of offering the building, or producing it in Court, the remedy is an action for infringement. There is another respect in which the latest Imperial Act differs somewhat materially from the legislation we passed in 1905, namely in regard to the term of copyright. I may mention here that the term limit of the copyright of an author or artist in his work is lower in Great Britain than in almost every other country in the world. We adopted that to some extent when we were passing our Commonwealth Act. In the measure of 1905 we provided that the interest of an author or owner of a copyright should extend during the life of the author himself and for seven years after death, or for forty-two years after publication, whichever was the longer term. In some other countries the term allowed is much longer. In Spain it extends to life and eighty years, and in Italy to forty years. In France, Norway, and Sweden, the term is fifty years beyond the life of the author. That is to say, if an author lived fifty years after the publication of a book, copyright would continue for fifty years longer; or, if he died a year after publication, the copyright would still continue for fifty years after his death. That is a much more liberal provision than was provided by Imperial legislation or by the Commonwealth Act in the past. There are many reasons why we should be satisfied to accept such an extension. If any person invests £5,000 in property, he can leave it as an inheritance to his descendants; but if an author 01 artist devotes ,£5,000 worth of his time or money to the production of a work which is of benefit to the people, copyright in it, under our present legislation, would last only forty-two years as a maximum, unless the author lived for more than thirtyfive years after publishing the work. I think that that was unfair to the descendants of an author or artist. Even the Imperial Parliament has now adopted much more liberal legislation. Another reason why it was desirable to adopt a longer term is that we should not give a less liberal term than is the case in the most liberal country in the Copyright Convention; and, although we have done that to some extent, we have at length determined to adopt the term in operation in most civilized countries. It will be remembered that when our Federal Constitution was being framed, it was provided that when Australia adopted a universal franchise she must adopt the most liberal franchise existing in any State of the Commonwealth. Similarly, when we adopted the universal postage rate for Australia, we had to adopt the most liberal rate existing in any State. We could not go back. It was so with the Imperial Government when dealing with copyright. When more than one person is interested in a particular copyright - that is to say, when there is collaboration in the production of a work, and there are two or three joint authors - the term proposed is fifty years from the death of the first author, or the life of the last one to die, whichever term is the longer. So that it will be seen that we are attempting to arrange matters, as far as we possibly can, in the interests of authors and artists. Every one will agree that we should do something to encourage those who have talent and ability as artists and authors in Australia. It would be injurious to the interests of the people, however, if, after liberal terms had been given to the owners of copyright, anything were done to prevent the public from getting the advantage of the publication of the work. Consequently, we have made provision that twenty-five years after the death of an author any one can publish a work by paying a royalty of 10 per cent, on the published price; and we also provide that, if the proprietors of a copyright fail to publish after the death of an author, the High Court can compel them to give a licence to anybody who applies to reproduce the work, under conditions which will be laid down, and which will have to be observed, for the protection of the rights of the heirs or descendants of the author. There is one other provision to which I must call special attention. An author, or the owner of a copyright, may be poor, and, under stress of circumstances, may assign his rights to some one else. We provide in this Bill that the owner of a copyright cannot make an assignment to cover a period of more than twenty-five years after his death, and, after that term, the copyright becomes a portion of his estate. That is a fair thing to do, inasmuch as it prevents an author from assigning away his rights, and thus, as it were, disinheriting his family. A person might do such a thing from spite, or at a time of temporary mental derangement. The good sense of the Senate will, I am sure, sanction the adoption of such a provision in this measure so that no person shall do anything of the kind, either for the purpose of disinheriting his children or defeating his creditors.

Sitting suspended from 1 Ho 2.30 p.m.

Senator McGREGOR - Although the provision to which I was referring before the luncheon adjournment may appear to be a restriction on the right of authors to dispose of their own property, it must be remembered that there are other circumstances in which legislation provides that individuals shall not, in the interests of those dependent upon them, dispose of their rights. But we are not absolutely interfering with the free will of an author, because we do not prevent him from disposing of his rights by will. He can, if he likes, will away his rights. But, under the Imperial Act which this Bill adopts, he cannot assign them for more than twentyfive years after his death. The next point upon which I wish to touch relates to the publication of school books. It will be understood that in the preparation of such works copyright cannot be strictly enforced. But we 'can guard against infringement to a very great extent. In the preparation of school books, we propose to allow a person to make not more than two extracts from a copyright work, and we prevent the making of additional extracts from the works of the same author within a period of five years. So that, although we protect the public interest from an educational point of view, we also protect authors by limiting the extent to which their works can be reproduced without their consent. The term of copyright in Government publications, as I understand, has in the past been in a very uncertain condition. It has not been properly defined. But in this Bill we propose that Government publications or works that have been prepared by Government officers shall have copyright, and that the copyright shall be the property of His Majesty, the King, and shall extend to a period of fifty years from the date of publication.

Senator Millen - The Minister is assuming some work prepared by Government officers ?

Senator McGREGOR - Yes, such as books of statistics, or other works which are the property of the country. There is a novel feature in this legislation relating to registration. By the Imperial Act registration is abolished. The author's copyright is protected without registration, or any difficulty or inconvenience to him. I am quoting this to show the comprehensive character of this measure. Political speeches are exempt from copyright. That is to say, if a politician or candidate addresses a public meeting, the newspapers can publish reports of his speech without any fear of being prosecuted for infringing his lecturing right.

Senator Blakey - Could we not go further, and compel the newspapers to publish our speeches?

Senator McGREGOR - I am afraid we could not put such a provision in a Copyright Bill. We might do something of the kind in an Electoral Bill, or we might provide, by an amendment of the Postal Act, that no newspaper should be registered as such unless it published the whole of the speeches which the honorable senator, or any other member of Parliament, or politician, chose to make. But it certainly would not be wise to deal with that subject in this Bill. Lecturers and preachers can, of course, protect themselves by giving notice beforehand, or by posting a notice at the place where they speak, that the publication of their utterances will be an infringement of the copyright law; but a politician is not protected in that way. No such right is reserved to him when he addresses a public meeting. If, however, he addresses a private meeting, he is in the same position as a lecturer or preacher, and publication of his address is an infringement of the copyright law.

Senator St Ledger - That simply makes the old law clearer, I think.

Senator McGREGOR - That is the position.

Senator Findley - Senator St. Ledger is perfectly safe; he can pursue the even tenor of his way.

Senator McGREGOR - If Senator St. Ledger, as a politician, addresses a public meeting, the newspapers can publish his speech if they like; but if he addresses a meeting of the Women's National League, or any similar organization of a private character - because these ladies have declared that they are not political - then, by posting a notice, he can prevent publication. If he did not warn off persons who might desire to publish his utterances, it is hard to say what might happen.

Senator St Ledger - The honorable senator is opening up immense possibilities to me !

Senator McGREGOR - The next provision to which I shall refer is that dealing with unpublished works. Previously, unpublished works have only had the protection that the common law gave them. This legislation will give to unpublished works the same protection as is given to published works. This, I think, is a wise innovation. Honorable senators will see that the Imperial Act is attached to this Bill somewhat in the form of a schedule to an ordinary Bill. There is this difference, however, that while the Senate or another place can amend the ordinary schedule to a Bill, we can strike out the whole of the schedule to this Bill, but cannot amend it. I do not think it would be judicious for us to strike it out entirely. The adoption of the Imperial Act in our legislation will be a step in the direction of making copyright legislation as far as possible uniform throughout the civilized world. We can, of course, make alterations to suit Australian conditions with respect to procedure and remedies without interfering in any way with the principles of Imperial legislation. For instance, in this Bill we provide for registration, though that is not provided for in the Imperial Act. It may, in certain circumstances, be advisable to provide for registration, and I intend to refer to some of these. Registration under our law would enable the issue of warrants to seize infringing copies. If an author, whose copyright was infringed in any way, wished to take action, he could, by reason of the registration of his copyright, under our legislation, take out a warrant to seize any publication which he regarded as an infringement of his copyright. He would be given power also to search. In connexion with subjects other than authors' copyright the provision for registration will give power to issue notice to forbid performance of a work in infringement of copyright. Suppose, for instance, a theatrical company came here, and was about to produce a certain piece,, and the author wished to enforce his copyright conditions, he could, under the provision for registration, give notice to every member of the company that if any attempt, were made to produce his work, he would take legal proceedings against each member of the company. He could give notice in the same way to the owner, proprietor, or lessee of the theatre of his intention to take action if any attempt were made to produce his work in that theatre, and he would have his remedy at law. These are advantages which would arise from registration under our law, although registration is abolished by the Imperial Act. In the past, certain criticisms have been levelled at the law passed by the Commonwealth Parliament in 1905. Of course, its imperfections were criticised, and some criticisms were offered upon the registration provisions requiring an author, in order to register, to provide two copies of his work, and to do other things considered necessary under our legislation. With respect to the supplying of copies, I do not think that our law can be complained of when compared with the provisions of the Imperial Act. Under that Act, the British Museum must be provided with one of the best copies of any work which is published in the United Kingdom. An author may also be called upon to provide a copy of his work for the Universities of Oxford and Cambridge, a Scotch and an Irish University, and, in some cases, the National Library of Wales. An author will not be required to do anything of the kind under Australian laws. Under the existing law, he has to supply two copies of his work to the Commonwealth t authorities if he wants to register his work, but under this Bill he will only be called upon to supply one copy. No honorable senator can object to such a condition. A desire has been expressed since the inception of the Commonwealth for the establishment of a National Library. The best - works of our best authors should certainly be included in that library, and we therefore make provision that the publishers of any work published in Australia shall supply one copy of the work for the benefit 'of the National Library.

Senator Givens - Why should they be expected to donate a copy of each of their works to the National Library?

Senator McGREGOR - In return for the protection we give them under our copyright law. Why is Senator Givens protected by the police when he is so strong and healthy that he is well able to protect himself? When an author is afforded all the protection we shall give him by the adoption of the Imperial Act and by our own legislation, we are asking very little from him when we ask him to supply the National Library with one copy of his work.

Senator Givens - One author's work may be worth £2, whilst another's may be absolute rubbish, and worth nothing.

Senator McGREGOR - It will probably be a greater trouble to the inferior author to produce his inferior book than it will be for the great author to produce a book that will be worthy the attention of every one in the Commonwealth.

Senator St Ledger - The National Library will not necessarily keep the inferior books.

Senator McGREGOR - If they are thought good enough, the books will no doubt be kept on the shelves of the Library, whilst those that are not considered worth keeping may be made a bonfire of.

Senator Givens - If we want a National Library, we should be prepared to pay for it, and should not cadge upon poor authors for their books.

Senator McGREGOR - It has been found necessary to adapt certain provisions of the Imperial Act to suit Australian conditions. In the case, for instance, of importations which, under copyright legislation, may be considered prohibited, it is necessary that we should have our own officers to carry such a provision into effect. Under the Imperial Act, this work is performed by the Imperial Customs authorities. We could not retain that provision intact, and it is necessary to provide in our legislation that the officers of the Commonwealth Customs Department shall be placed in charge of the matter. The next matter arising for consideration is that concerning musical, dramatic, and artistic works produced before the commencement of the Imperial Act. Previously, although such works, when made in the United Kingdom, were protected so far as Great Britain was concerned under the Imperial legislation, they were not protected in any of the Dominions. The new legislation will protect such works. Honorable senators will agree' that if the works of authors deserve protection, so do the works of artists. To secure the protection in Australia of the works of British artists, we must supplement the Imperial legislation. I have, to the best of my ability, endeavoured to put the main principles of this measure before the Senate. I hope that when we meet again next week, honorable senators will have given to this Bill the consideration which it deserves, and will be prepared to discuss it, and, if possible, to amend it for the benefit of authors, artists, and the people generally of this country.

Debate (on motion by Senator St.

Ledger) adjourned.

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