INTRODUCTION
A.1 We now intend to consider questions and problems that could arise under the law of copyright in relation to our terms of reference and recommendations. The material on copyright is placed in this Appendix to emphasise our opinion that neither the terms of reference nor the recommendations raise an issue for reform of copyright law, and that copyright law presents no obstacle to the implementation of our recommendations. Nevertheless, copyright is closely related to the entire subject matter.
A.2 If such implementation occurs, it may be that new kinds of copyright problems and disputes will appear. However, we see no reason to conclude that the courts and the existing law would be unable to deal satisfactorily with them. If they do arise, disputes may occur between participants in the proceedings of courts and Commissions (including the Crown) on the one hand, and those who publish details of the proceedings by way of report comment or otherwise, on the other.
A.3 The Copyright Act 1968 (Cth) affords protection to authors of literary, dramatic, musical and artistic works by granting to the author certain exclusive rights such as the right to publish and broadcast the work.1 Legal proceedings may be taken if these rights are infringed.2 In the context of this report two aspects of copyright law merit specific attention. The first is its relation to judgments and reports of courts and Commissions in New South Wales. The second is whether copyright may subsist in particular parts of the actual proceedings of the court or Commission for example, the speeches of counsel.
IN WHAT MAY COPYRIGHT SUBSIST?
A.4 For the purposes of the Copyright Act 1968 (Cth) copyright can subsist in literary, dramatic, musical or artistic “works” and also in subject matter other than “works” such as radio and television broadcasts, cinematograph films and sound recordings. The Act only applies to “works” that have been reduced to writing or to some other material form.3 The Act further provides that the work must be “original.”4 By this is meant:
“that the product must originate from the author in the sense that it is the result of a substantial degree of skill industry or experience employed by him.”5
Part of the proceedings of a court or Commission can be recorded in a sketch or photograph Copyright protection can be given to sketches and photographs provided they are produced with skill and labour as both fall within the definition of an original “artistic work.”6 .
A.5 Although copyright may also subsist in sound recordings, films and television and sound broadcasts, these are not referred to as “works” in the Act and therefore there is no requirement that the subject matter must be original in order for them to be protected. Furthermore, the copyright in recording media subsists independently of the copyright in the works recorded by them.”7
A.6 The Act defines a “sound recording” as “the aggregate of sounds embodied in a record.” “Record” means a disc, tape, paper or other device in which sounds are embodied.8 The Act further defines “cinematograph film” as the aggregate of visual images embodied in an article or thing so as to be capable of being shown as a moving picture.9 It includes the aggregate of the sounds embodied in a sound track associated with visual images. Sterling and Hart state that this definition of cinematograph film is wide enough to include a film strip, tape (including videotape and tape in a videocassette), video disc or any other material substance.10 The Act also defines television and sound broadcasts, although it has been suggested that cable television and otherwise diffusion services do not constitute broadcasting for the purposes of the act and are therefore not protected by copyright.11
A.7 It is thus apparent that a variety of means can be employed to record the proceedings of a court or Commission. However, this does not answer the question of ownership of copyright. Is it possible that the copyright in the proceedings of a court or Commission is held by the participants to the proceedings? For example, it may be thought that either the judge or the Crown owns the copyright in any judgment delivered in court or that a barrister owns the copyright in prepared speeches that he or she makes during the course of the proceedings. If that is the case, any subsequent recording by representatives of the media of proceedings which are already the subject of copyright protection may constitute an infringement of that copyright. For reasons which we outline below, we do not believe that any infringement will occur.
COPYRIGHT IN JUDGMENTS
A.8 There is some doubt whether the Crown has copyright in written judgments. On one hand it has been suggested that as a Judge:
“is not under a contract of employment to the Crown and his judgments cannot be said to be made under the direction or control of the Crown or a government department, there is no Crown copyright in judgmental.”12
Yet it has also been argued that the Crown has prerogative copyright in judgments which is preserved by s.8A of the Copyright Act 1968 (Cth).
“[T]he Crown truly has a prerogative right in the judgments and the reasons therefor pronounced in the courts. It is not because of a master-servant relationship with the judges, but that the judges sit in the Royal courts, pronouncing judgments in the name of the Monarch. The judgments are those of the Crown.”13
It is to be noted that the Crown in right of the State of New South Wales has traditionally claimed copyright in the judgments of New South Wales courts, and continues to do so. This claim asserted through the Department of the Attorney General and of Justice, is not conceded by all judges.
A.9 It may be thought that a case exists for the conclusion that copyright in the report of a Commission is held by the Crown pursuant to section 176(2) of the Copyright Act 1968 (Cth) in that the report of a Commission is “made by, or under the control” of the Commonwealth or a State. This argument is based on the premise that the function of a Commission is to obtain information for the executive branch of government.14 The opposing view is that although the function of Commissions maybe to obtain information for the executive, they are independent precisely because their findings are not made under the direction or control of the government.
A.10 lf copyright in written judgments is held by the Crown, then no copyright can be claimed in a verbatim report of the judgment prepared by a reporter.15 This is because the report is only a copy of a document which is already the subject of copyright protection and the verbatim report cannot be considered an original literary work. However, the reporter may have copyright in annotations or compilations of written judgments provided that the skill and labour expended in their preparation justifies copyright subsisting in them as original literary works.
A.11 With respect to the copying of judgments, section 182A of the Copyright Act 1968 (Cth) provides that Crown copyright in a judgment of a Federal, State or Territory court is not infringed by the making, by reprographic reproduction, of one copy of the judgment.
A.12 Should a distinction be drawn between written and oral judgments for the purposes of copyright? If a judgment is delivered orally and then transcribed, it is then a “literarcy” work within section 10 and section 31 of the Copyright Act 1968 (Cth) and copyright would then subsist in the transcript Of course, if a judgment is written and then orally delivered, copyright subsists in the written judgment. Consequently:
“In as much as, with few exceptions, judgments delivered in open court are either in writing, or, if purely oral are transcribed, the distinction if any, between written and oral judgments, for the purposes of what constitutes a “literarcy” work within s.10 and s.31 of the Copyright Act 1968 (Cth), as amended, appears to be merely of abstract significance. All judgments may therefore be considered as original literary works of which the authors ate the judges (singly or jointly) who have delivered them.”16
A.13 Assuming that the Crown holds copyright in judgments as literary works, the question arises whether copyright can be breached by the news media and authors of books and articles. It has been suggested that even if the Crown has prerogative copyright in judgments, it has not insisted upon this right to prevent infringement of copyright by both the news media and by the private publishing of law reports and therefore a “strong case could be made indeed for a submission that if there was a Crown prerogative right in respect to judgments, as suck it has lapsed by desuetude or renunciation.”17
A.14 Section 42(1) of the Copyright Act 1968 (Cth), which concerns fair dealing for the purpose of reporting news, is also of relevance with respect to both judgments of courts and the reports of Commissions. The section provides that a fair dealing with a literary work does not constitute an infringement of the copyright in the work if:
“(a) it is for the purpose of or is associated with the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the work is made; or
(b) it is for the purpose of, or is associated with the reporting of news by means of broadcasting or in a cinematograph film.”18
In the case of a book or article which cannot be classed as “the reporting of news” or the purpose of section 42(1), section 41 provides that a fair dealing with a literary work does not infringe copyright in the work if “it is for the purpose of criticism and review”. It has been said with respect to the equivalent English provision that the “copying of reported cases by the writers of legal textbooks now, no doubt falls to be considered in the light of this proviso”.19
A.15 Another defence may be provided by section 43 (1) which states that the copyright in a literary work “is not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding” (emphasis added). In the usual course of events, this section applies to copyright works which are reproduced in evidence in judicial proceedings. However, if a judgment is considered a literary work in which copyright subsists, then one interpretation of the section is that the copyright is not infringed in a report in the media of the judgment.
A.16 If this interpretation is correct it appears that section 43(1) is also applicable to the proceedings of Royal Commissions and Special Commissions of Inquiry because “judicial proceeding” is defined in section 10 of the Copyright Act 1968 (Cth) to include a proceeding before a “person having by law power to hear, receive and examine evidence on oath”. Section 9(l) of the Royal Commissions Act, 1923 provides that a Royal Commissioner may administer an oath to any person appearing as a witness before the Commission and may examine that person on oath A similar provision is contained in section 15(1) of the Special Commissions of Inquiry Act, 1983.
A.17 In summary, although it may not be clear whether the Crown owns the copyright in judgments delivered in court or the reports of Commissions, a report by the news media of a judgment or the findings of a Commission will not infringe copyright provided that the report constitutes a “fair dealing” for the purpose of reporting news within the meaning of section 42(1) of the Copyright Act 1968 (Cth). Section 43(1) may also be relevant to news reports of the findings of Commissions and of judgments, although the application of this section depends upon an interpretation that has not been subject to judicial scrutiny. With respect to books and articles in which judgments are quoted, copyright will not be infringed pursuant to section 41 if it is a “fair dealing” for the purpose of criticism or review.
COPYRIGHT IN THE PROCEEDINGS OF COURTS AND COMMISSIONS
A.18 Separate from the issue of copyright in judgments is the question whether copyright subsists in parts of the actual proceedings of a court or Commission, for example, an address by a barrister, and if so, who owns the copyright? One approach is to equate these parts of the proceedings with the law of copyright in relation to public speeches.
A.19 If a barrister appearing in proceedings before a court or Commission reads from a written address, then the written address has copyright protection as an unpublished original literary work.20 Any address, comments, questions and the like, made without notes, of which no permanent record has been made, will not enjoy copyright protection as they have not been “made” within the meaning of section 22(1), that is, “reduced to writing or to some other material form.”21
A.20 If, when the barrister was reading his or her written address, a news reporter took down the speech in shorthand and prepared a report using considerable skill and labour, this may, in itself, constitute “a making of a word” for the purposes of the Act. Consequently, while the barrister is the owner of the copyright in his or her speech there may be a separate and distinct copyright in the report belonging to the reporter or the reporters employer.22 The reporter or employer would have no rights in the speech of the barrister but would be able to restrain others from infringing the copyright in the report of the speech Some doubts exist concerning whether a reporter can claim copyright in verbatim reports of the oral parts of a judicial proceeding,23 although if the arguments or speeches of barristers are reported in an abridged or summary form such a summary will have copyright protection provided that it can be classed as an original literary work because of the skill and labour expended in its preparation.24
A.21 If a reporter makes a sound recording of the speech of a barrister, this will constitute a “making” for the purposes of section 22(2). The recording itself, as distinct from the speech will not qualify as an original work as it lacks the quality of “original word”, however, the recording will enjoy copyright protection as a sound recording.25 Furthermore, as we have already observed, a film or video recording of the proceedings of a court or Commission will also have copyright protection as will a television or radio broadcast.
A.22 As is the case with copyright in judgments, a news media report of the proceedings of a court or Commission will not infringe copyright already held in the proceedings provided that the news report is a fair dealing for the purpose of reporting news and thereby meets the criteria outlined in section 42(1) of the Copyright Act 1968 (Cth). Section 43(1) concerning reports of judicial proceedings may also operate to allow the media to report these proceedings. Both section 42(1) and section 43(1) have already been discussed.26 The application of these defences to news media reports means that copyright law does not in principle present obstacles to the recording for reporting purposes of the proceedings of courts and Commissions by representatives of the news media, including television broadcasters.
A.23 With respect to the publication of books and articles not classified as “the reporting of news” for the purpose of section 42(1) and which contain extracts of the proceedings, for example, an address by counsel which is subject to copyright, section 43(1) maybe relevant if the publication can be viewed as “a report of a judicial proceeding” which as we have seer can include the proceedings of Royal Commissions and Special Commissions of inquiry for the purpose of the Copyright Act 1968.27 Section 41 may also provide a statutory defence if the publication is a fair dealing for the purpose of criticism or review.
FOOTNOTES
1. Copyright Act 1968 (Cth.), s.31(1).
2. Id., ss.36(1), 115(1).
3. Id., s.22(1).
4. Id., s.32.
5. Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 WLF 273, per Lord Devlin, at p.289.
6. Note 1 above, s.10.
7. M. Armstrong, M. Blakeney and R. Watterson, Media Law in Australia (1983), p.78.
8. Note 1 above, s.10.
9. Ibid.
10. J. Sterling and G. Hart, Copyright Law in Australia (1981), p.69.
11. Note 7 above, p.79.
12. H. Laddie, P. Prescott and M. Vitoria, The Modem Law of Copyright (1980), para. 15.13. Section l76(2) of the Copyright Act 1968 (Cth) provides that the Commonwealth or a State is, subject to Parts VII and X of the Act, the owner of the copyright in an original literary work “made by, or under the direction or control oL the Commonwealth or the State, as the case may be”.
13. C.J. Bannom “Copyright in Reasons for Judgment and Law Reporting” (1982) 56 Australian Law Joumal 59, at p.60. Lahore is also of the opinion that the owner of the copyright in written judgments is the Crown; J. Lahore, Intellectual Property Law in Australia: Copyright (1977), para.534.
14. LA. Hallett, Royal Commissions and Boards of Inquiry (1982), Chapter 2.
15. Lahore, note 13 above, para.534. The author observes that there is an argument that no copyright should exist in reports of legal proceedings. In the United States no reporter can have copyright in opinions delivered by the courts: Lahore, citing Wheaton v. Peters (1834) 33 U.S. 591.
16. “The Crown and Copyright in Publicly Delivered judgments” (1982) 56 Australian Law Journal 326, at p.326.
17. Id., p.327.
18. In Commonwealth of Australia v. John Fairfax & Sons (1980) 32 ALR 485, Mason J. stated that he was inclined to the view that “news” in s.42 is not restricted to “current events” (p.496). Further, s.42(1) applies to television broadcasts as s,25(1) states that a reference in the Copyright Act 1968 (Cth) to broadcasting shall “unless the contrary intention appears, be read as a reference to broadcasting whether by way of sound broadcasting or of television.
19. Copinger and Skone James on Copyright (12th ed., 1980), para.516.
20. Note 1 above, s.32.
21. Ibid. See also note 10 above, p.46.
22. Id., p.47. Section 35(4) provides that where a literary work is made by the author in pursuance of the terms of his employment by the proprietor of a newspaper or magazine, and is so made for the purpose of publication in a newspaper or magazine, the proprietor is the owner of any copyright subsisting in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical broadcasting the work, or reproduction of the work for the purpose of its being so published or broadcast The owner of the copyright in a radio or television broadcast can be either the Australian Broadcasting Corporation, the Special Broadcasting Service or the radio or television licensee: s.91.
23. G. Sawer, “Copyright in Legal Proceedings” (1953) 27 Australian Law Journal 82 at pp.84-85.
24. Lahore, note 13 above, para.534.
25. Note 1 above, s.89. See also note 10 above, p.47.
26. Paras.A.14-A.17.
27. Para.A.16.
