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Thursday, 23 August 1906

Mr ISAACS (Indi) (Attorney-General) . - I move -

That the Bill be now read a second time.

This measure amends the Copyright Act of 1905. It must be remembered that the term " book, " as here used, means a good deal more than is ordinarily understood by the word. Its definition, according to the principal Act being - " Book " includes any book or volume, and any part or division of a book or volume, and any article in a book or volume, and any pamphlet, periodical, sheet of letterpress, sheet of music, map, chart, diagram, or plan separately published, and any illustration therein :

Following the United States legislation, We propose to insert in the Act of last year, after section 31, the following section : - 31A. (1) The owner of the copyright in a book shall cause notice of the copyright therein to be printed on the title page (if any) or any conspicuous part of each copy published by inserting the words "Copyright in Australia"(followed by the name of the owner of the copyright and the year in which the book was first published in Australia).

The intention of this alteration is to give notice to those who desire to copy an article that it has been bought and paid for, and copyright in it exists, and thus to prevent any one who is acting in good faith from unwittingly using another's property against his will.

Mr Higgins - The Bill provides for the giving of notice similar to that displayed in the legend, " Trespassers will be prosecuted."

Mr ISAACS - Yes. The owner of a copyright must print on the copyrighted publication an intimation that it is his private property. It is also provided that-

Where -

(a)   proceedings are taken for the infringe ment of the copyright in a book, and

(b)   the defendant proves to the satisfaction of the Court that he has in his possession a copy of the book and that that copy was published with the consentof the owner of the copyright and does not contain the notice required by this Act of the copyright therein judgment may be given in favour of the defendant either with or without costs as the Court in its discretion thinks fit.

Mr Higgins - Why is the defendant made to prove the consent of the owner of the copyright?

Mr ISAACS - That provision follows a principle laid down by Lord Thring, in England. When a defendant is found using property which contains on it the distinct intimation that it belongs to another, he should be compelled, if he wishes to avoid liability for his action, to prove that he acted bond fide. The plaintiff must therefore prove that the notice of the copyright required by the Act was printed on the book from which the copy was made. To that the defendant may reply that no such notice was printed on the copy in his possession, and that he acted bond fide in ignorance of the copyright. In other words, although the plaintiff may show that, generally speaking, he complied with the Act, the defendant may escape, if he proves that in regardto the particular book from which he made his copy the Act was not complied with.

Mr Watson - The onus of proof is not removed in all cases.

Mr ISAACS - The burden of proof may be shifted. After a plaintiff has made out a prima facie case, the defendant may exonerate himself in the manner I speak of.

Mr Watson - The burden of proof is shifted in certain cases.

Mr ISAACS - Yes. It is provided that judgment may be given in favour of the defendant. I spent some time considering whether " shall " or " may " should be used, and. I have thought it better to employ the word " may," in order to leave the Court free to judge of the circumstances. The consent of the owner of the copyright might, for instance, have been obtained by fraud.

Mr Higgins - If that is the meaning of the provision, it should be made clear.

Mr ISAACS - I have, to some extent, followed the drafting of Lord Thring. Since the Bill was distributed, I have found some very late American cases, which lead trie to propose some amendments. For instance. I intend to amend the proposed new clause 31a, by inserting after the word "published" the words "in Australia." A very strange case occurred in America, in which the Judge, much, against his will, because he thought the decision unfair, was compelled to decide against a plaintiff, since there had been publication abroad. Later on, I shall be glad to give the particulars of that case. Owing to that circumstance, the plaintiff was defeated. There was a publication in England, and although the plaintiff had complied with all the requirements of the American law with regard to publication, he was defeated. I propose to insert the words " in Australia" in the first sub-section.

Mr Johnson - How could that requirement be complied with in the case of a painting?

Mr ISAACS - This provision relates to books.

Mr Thomas - Why has the Minister selected special items for particular treatment under the Copyright Act?

Mr ISAACS - This clause deals with books, which include a very wide class of cases.

Mr Thomas - Does the provision embrace everything that can be copyrighted ?

Mr ISAACS - No, because I do not think that every class of work would lend itself to such treatment. The United States Act does not carry the matter any further than we propose to- do. In the third clause we propose to make substantially similar provision with regard to artistic works. I propose to omit the words "upon the work " in the early part of the clause so as to provide that it shall be sufficient to cause a notice of copyright to be printed or inscribed upon each copy of an artistic work. In another American case copyright was sought to be enforced in respect to a picture which was exhibited in London, and did not bear the words "copyright in America." Although all the copies of the picture bore that notice, the fact that it was absent from the original caused the defeat of the plaintiff, who had no redress.

Mr Johnson - There is no provision in the Bill with regard to theatrical works.

Mr Deakin - Dramatic works are dealt with in the Act.

Mr Johnson - But I refer to models of scenes, for instance.

Mr ISAACS - I shall be glad to hear any suggestions that the honorable member may have to make. I do not intend to draw any invidious distinctions between one class of works and another, because what is fair for one is fair for the other. Clause 4 relates to reciprocal provisions for the protection of copyright within the Empire, and, I think, will meet with the approval of honorable members. It is provided -

Where it is made to appear to the GovernorGeneral that any part of the British Dominions has made satisfactory provision for the protection in that part of the copyright in books, the performing right in musical or dramatic Works, or the copyright in artistic works, first published, performed, or made in Australia, the GovernorGeneral may, by order, declare that all or any of the provisions of this Act shall, subject to such modifications and conditions as he sees fit to direct, apply to the copyright in books, the performing right in musical or dramatic works, or the copyright in artistic works, first published or performed or made in that part of the British Dominions :

Provided that the period of protection in Australia shall not exceed the period of protection in that part of the British Dominions or the period of protection under this Act.

That is intended to give effect by enactment to legislation which may be passed in any other part of the British Dominions. There is another point to which I wish to direct the attention of honorable members. It was brought to the mind of the Government after the Bill had been distributed, and is a very important one. Honorable members may recollect that when the Copyright Bill was before us last session the Senate introduced provisions relating to the exclusive rights of newspaper proprietors to publish cable news. I propose to read the provisions contained in the Bill as reported in the Senate and forwarded to this House. In the Bill as it then stood, clause 34 read as follows : -

1.   The proprietor of any newspaper or news agency, who alone or in conjunction with others has obtained specially news of any fact or event which has taken place beyond the limits of Australia, shall, as against all persons who have not obtained the news independently, be entitled for the space of twenty-four hours immediately succeeding its publication to the exclusive right of publishing that news.

I should like to explain what that means. Copyright, so far as it relates to literary matters, gives the exclusive right of producing copies of works in a particular form, in particular language, and under a particular arrangement. It does not relate to the substance of the information conveyed, but to the form in which it is cast. This provision which I have just quoted purports to give to the proprietors of newspapers, or a news agency, something which the common law does not give them - something to which they are entitled as a matter of honesty. because news is a commodity which has to be paid for in hard cash, and should, therefore, be protected in the same way as if it were of a visible and tangible nature.

Mr Johnson - Cannot the newspaper proprietors in some of the States copyright their cable news?

Mr Watson - - Yes.

Mr ISAACS - T do not know whether that is so or not. The clause from which I have been quoting provides further -

2.   Any person who publishes any news protected by this section, without the consent of the person who is entitled, to the exclusive right to publish it, shall be liable to a penalty not exceeding One pound for each copy of the newspaper or document in which he publishes the news, but not exceeding in the whole Fifty pounds.

3.   For the purposes of this section a person shall be deemed to publish any news protected thereby if he publishes the whole or part of the news or of the intelligence contained in the news or the substance of the news or intelligence contained therein.

4.   Proceedings for the recovery of any penalty under this section may be instituted by or in the name of any person aggrieved in any court of summary jurisdiction or court of competent jurisdiction, and the penalty shall be paid to him.

5.   An injunction or order restraining the repetition of any contravention of this section may also be awarded and granted by any court of competent jurisdiction.

6.   Subject to the regulations, the Minister may, if he is satisfied that any combination of newspaper proprietors exists for the purpose of obtaining telegraphic news of any facts or events which have taken place outside Australia, and has refused, without reasonable cause, to admit any newspaper proprietor to membership or t(. the benefits of membership in such combination or to supply him at reasonable rates for immediate publication in his newspaper wilh such news obtained by such combination, order such combination to supply him with such news for publication in his newspaper at such rates and on such terms as the Minister deems reasonable, and if such combination fails to comply with such order the rights of such combination or the members thereof under this section shall, so long as such failure continues, cease to be exclusive as against the proprietor of such newspaper. For the purposes of this sub-section a rate in respect of any news shall not be deemed to be reasonable if it substantially exceeds the proportion of the cost of obtaining such news to any newspaper proprietor who is a member of such combination.

When these provisions came before Parliament, the matter proved to be so difficult, and the session was so far advanced that the Government agreed that, if the clauses were withdrawn, they would give honorable members an opportunity for the discussion of the whole question this session. The attention of the Government has been drawn to that pledge, and I now propose to carry out the undertaking then entered into. The first five sub-clauses, although they extend the rights of newspaper proprietors, afford them very proper protection.

Mr Lonsdale - They are perfectly entitled to a copyright in regard to any news that they may obtain at their own cost, but that does not apply to cases in which they merely pick up information from other newspapers.

Mr ISAACS - That point is dealt with. If, because of the ethics and the justice of the case, we confer additional rights upon newspaper proprietors, they may be called upon to recognise that the public are entitled to have news disseminated so long as those who have to pay for it are not subjected to any loss, and that they should consent to allow other persons to publish their cables provided that fair and equitable terms are offered. The proposal is to make some verbal alterations in the first five subclauses.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Is it intended that newspaper proprietors shall bear all the expense and risk of their enterprise, whilst any other person may share in the benefit if he pays for it?.

Mr ISAACS - We intend, for the purposes of discussion, to provide -

6.   If any person who obtains news which under this section he has an exclusive right to publish, refuses without reasonable cause to supply the news to the proprietor of a newspaper, on fair and reasonable terms, for immediate publication -

(a)   he shall not be entitled to copyright in the news or in any letter-press em bodying the news ; and

(b)   no person shall be liable to a penalty under this section in relation to the publication of the news.

In case of difference, the question what terms are fair and reasonable may, on the application of either party, be determined summarily by a Judge of the Supreme Court of a State.

It is just that the risk to which the honorable member refers should be taken into consideration, and, no doubt, it would have great effect upon the mind of the Court in determining what were fair and reasonable terms. If that element were taken into account, it would make the person who desired to share in the benefits of any arrangement, also bear his proportion of the burdens attached to it. We should not say to a newspaper proprietor, or combination of proprietors, who have to pay large sums of money for their news, and to take considerable risks, " You take all the risks, but must allow other persons to come in and share in the benefits of your enterprise, upon merely paying a proportion of the cost of the cables." That would be unfair. All the circumstances should be taken into consideration. If that is done, and we protect the newspaper proprietors, not only in regard to the verbiage with which they clothe their news, but also in regard to the news itself - which is not now, at least in some parts of Australia, protected at all - it may be considered a reasonable thing that other newspaper proprietors who have not the means at their disposal to inform the public, by means of special telegraphic news, should have an opportunity of sharing in the benefits of the service upon reasonable terms. Of course, the Court could not make an order compelling a newspaper proprietor to permit others to share in the benefits of his service, but the Act could make it clear to him that he could not enjoy certain new privileges in connexion with the protection of his news unless he was prepared to comply with the conditions laid down.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Have they no right under common law ?

Mr ISAACS - To what does the honorable member refer?

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I am speaking of the information which is contained in their telegrams.

Mr ISAACS - They have no common law right in that respect. Very unjustly, I think, newspapers cannot complain if their news is stolen so long as its literary form is not stolen.

Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - I thought that it was decided otherwise in Melbourne?

Mr ISAACS - No.I was engaged in one case, and I can assure the honorable member that in Victoria the news itself - which is the most valuable portion of the information - can be pirated so long as the form of it is not stolen. In other words, a person may take the kernel so long as he does not annex the shell. The proposal in the Bill will confer additional benefits and protection upon newspaper proprietors, and the question is whether - in view of that fact - they should be asked to shoulder an additional burden. I shall be very glad to hear what honorable members have to say as to the fairness or otherwise of such a provision.

Mr Henry Willis - How long will newspaper proprietors be protected?

Mr ISAACS - For twenty-four hours. I should very much like to hear the views of honorable members upon this question. To my mind it is a most difficult one. It is a question which involves private rights and public advantages, and it is one which is open to a great deal of consideration and argument. It is a difficult question, and I do not pretend for one moment to say that it is one-sided. I have placed the matter before the House, and I am sure that the Government will be infinitely obliged if honorable members will give them the benefit of their opinions upon this matter. It seems to me a shocking condition of affairs that newspapers should not be protected in the matter of the news for which they pay.

Mr Watson - It is also shocking that the newspaper proprietors should be able to form a combination to which they refuse to admit anybody outside the present ring.

Mr ISAACS - I agree that there are considerations which affect the public beyond those which I have mentioned.

Mr Henry Willis - If the newspaper proprietors were protected for twelve hours in the matter of their news, does the AttorneyGeneral think that would be sufficient ?

Mr ISAACS - If the honorable member will place his views before the House the Government will be very glad to consider them. The provisions to which I have last referred have been placed before honorable members in the best shape that we can put them- in order to give effect to a pledge which was made by the Government last session. We then promised that some such proposal would be submitted in order that it might be discussed under as advantageous conditions as it would have been upon that occasion. It will be remembered that the Government were allowed to excise a certain portion of the Copyright Bill and to pass the Act in its present form, upon the distinct understanding that a further opportunity of discussing this particular phase of the question would be afforded to honorable members.

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