2nd Parliament · 2nd Session
The President took the chair at 2,30 p.m., and read prayers.
Senator DOBSON presented a petition from the Women’s Christian Temperance Union, in Tasmania, praying that the importation of opium, except for medicinal purposes, shall be prohibited.
– I ask you, sir, whether your attention has been directed to publicstatements to the effect that it is proposed in the other branch . of the Parliament to alter the Standing Orders by a method which does not appear to conform to section 39 of the Constitution Act, and which appears to ignore the rights and duties of the Senate, and if so, whether you will take such steps as. may appear to be necessary in order to safeguard or to assert its privileges ?
– My attention has not been specifically called to the matter. I have seen a statement in the press, but I do not think that it is within the sphere of my powersor functions to express an opinion as to the Standing Orders of the other House.
– That is not my point, sir. What I asked was whether your attention had been drawn to a proposal made elsewhere, which, would seem to indictate a departure from the Constitution Act, which secures to tire Senate certain rights ?
– I cannot see how the Senate is affected.
– Section 39 of the Constitution Act prescribes the quorum of the House of Representatives, and says it shall not be altered “ until the Parliament otherwise provides.” From what has appeared in the press and in the records of the other House, I assume that it is intended to alter that provision by a resolution of that House alone.
– That is not the opinion which I have formed as to the proposed procedure. What I understand is intended to be done is to alter, not the quorum, but the machinery by which it can be ascertained. However, I do not wish to express an opinion.
At a later stage,
– I wish to ask, the Minister of Defence, without notice, whether it is not a privilege of the Senate that all Bills which’ are received from the other House shall have been considered and passed by no less than twenty -five members ?
– The honorable and learned senator can read the provision in the Constitution Act for himself, and as he is a member of the. learned profession, very likely he will be able to form a better opinion than I, as a layman, can. If he will give notice of a question I shall get an answer.
– I desire to ask the Minister of Defence, without notice, whether the Government will, as early as possible, supply honorable members with a copy of the report on the Northern Territory by the Governor of South Australia, as recently laid upon the table pf its House of Assembly, more particularly the portion dealing with the question of the employment of coloured labour?
– If it be the desire of honorable senators, I shall lay the paper upon the table.
Honorable Senators: - Hear, hear.
– I shall lay my copy of the paper upon the table to-day.
– I desire to ask the Minister of Defence, without notice, whether his attention has been drawn to a letter in to-day’s issue of the Argus practically confirming the statement I made here some time ago as ..to the character of a notice posted on the boats of the Peninsular and Oriental Company t and if so, whether he will look into the matter, and obtain that further information which he promised me six weeks ago should be forthcoming.
– I asked that the information should be supplied to me, but up to the present time it has not been received. I shall look into the matter, and get the information as quickly as possible. My attention had not been previously called to the letter in question.
– I wish to’ askthe Minister’ of Defence, without notice, whether he will lay upon the table, if possible to-morrow, a return showing the telegraphic revenue received at the Tarcoola post-office?
– I shall make inquiries and place the return upon the table if I can;
Senator KEATING laid upon the table the following paper, : -
Report of Pacific Gable Conference! 1905.
Ordered tq be printed.
– I beg to lay upon the table the following paper-
Report df the Governor of South Australia on his visit to the Northern Territory.
I move -
That the paper be printed.
– I wish to take advantage of this opportunity to ask the leader of the Senate whether he will make an inquiry as to the work which the Printing Committee is or is not doing? I understand that for some weeks or months the Printing Committee has not done any active work, but that a similar body in another place does the work for which it was appointed. In that House, most of the papers which are laid upon the table are referred to the Printing Committee, which meets and resolves what papers should be printed, and reports accordingly. It is most desirable that our Printing Committee should follow that practice, and that we should have an opportunity of knowing that papers which are sought to be printed have been examined by a committee of five or seven men who think that they are worth printing. We are getting into a very loose habit of ordering a document to be printed on the motion of an honorable senator without any one else knowing whether it is of importance or not.
– The Senate refused to give the Printing Committee any powers, and it declined to sit-.
– I should like Senator Playford to look into that matter, and see if he cannot make, a suggestion for bringing the Printing Committee, or some other body, into active work with a view to saving a little money in the printing of documents.
Senator PLAYFORD (South AustraliaMinister of Defence). - -This is npt- a matter in which I should be asked’ to interfere. It.is purely one for the Senate to deal with. A Minister Kas no control over the Senate or its officers. The course adopted in South Australia, might perhaps be adopted here with advantage. In each House of its Parliament, any documents which a Minister lays upon the table, and does not move to have printed, are referred to a Printing Committee. Through its chairman that body brings up a weekly report, which is read by the President or the Speaker, as the case may be, and which recommends that a paper bearing a certain number and title, should or should not be printed.
– Has not the honorable senator heard the statement that the Printing Committee has declined to act in consequence of the action taken by the Senate ?
– I do not know that the Printing Committee has ever refused to act.
– Where is the report of the Printing Committee?
– It is not for me, but for the Senate to interfere in this matter. The officers are not under the control of the Executive, and therefore I -cannot take any special action.
– But the Printing Committee was appointed on the nomination of the Government. Cannot the honorable senator take steps to have that body disbanded if it has not done its duty?
– No, I cannot. That is a matter for the Senate. I do not know that the Committee was nominated “by the Government; but, if so, it was at the request of the Senate. So far from criticising the actions of the Committee, and taking any particular course in regard/ to it, I say that we have no business to db anything of the kind.
– There has been no request that the Printing Committee should be called together.
– Is it not for the leader of the Senate to take action?
– No; the Government has nothing to do with the Committee. The Senate appointed the Committee, which has never asked that it should be called together. If it had one of the clerks of the Senate would have sent a circular to each of the members.
– Would it be competent for a senator to move that some action “be taken?
– Certainly’. The Committee is under the direction of the Senate, and will do what the Senate desires it to do.
– But it will not.
– I do not know that it will not. I am informed by the Clerk of the Parliaments, Mr. Blackmore, that nearly all the papers that have been laid upon the table are either in print, or Slave been ordered to be printed by the
Senate. If ‘that be so, what has the Printing Committee ‘to do ? It cannot say that a paper that has already been printed by order of the House of Representatives shall not be printed ; nor can it say that a paper ordered by the Senate to be printed shall not te printed. Whether the Committee is to be called together or not is a matter for the consideration of its members, and not for the leader of the Senate, who has no more to do with the Committee than has any other senator.
Question resolved in the affirmative.
Senator PLAYFORD (South Au.stral.ia- Minister of Defence). - I beg to lay upon the table the following paper : -
Copy of correspondence between the Premier of New South Wales and the Prime Minister re immigration and the Immigration Restriction Act.
– I move -
That the paper be printed.
With respect to the Printing Committee, my recollection is that we held one or two meetings.
– Not this session.
– No, last session. We drew up certain rules of procedure, came to the Senate, and asked1 it to invest us with certain powers. We asked for exactly the same powers as the Printing Committee of the House of Representatives was invested with. We arranged that the two Committees should sit together, the chairman of the Senate Printing Committee, and the chairman of the House of Representatives Printing Committee presiding alternately. We asked that all papers laid upon the table should be referred to the Printing Committee, and that the two Printing Committees should jointly decide what should be printed, and what should not. When we brought our request before the Senate, Ministers opposed it, and if I remember rightly, you, sir, also did so.
– No; all I did was to point out that the Senate itself had the ultimate right to say whether a paper should be printed.
– If papers laid upon the table of the Senate were not to be submitted to the Printing Committee, but were, at the instance of the Minister or of a senator to be ordered to be printed, it appeared that the Committee would have nothing to’ do. No papers were submitted to it, and it had no rights or powers whatever. The members of the
Committee considered that it would have been simply foolish to meet under the circumstances. In my opinion there has been great waste and extravagance by the Senate in ordering many papers to be printed which never should have been printed; and which if referred to the Printing Committee would in all probability never have been printed. Some of them, I venture to say, were extremely expensive to print, have never been read by senators, and are practically of no use or interest. It is absolutely useless, however, to have a Printing Committee unless it has some powers. .We asked for the same powers as the Printing Committee of the House of Representatives has > and as those powers were not given to us there was- nothing for the Committee to do.
– What power has the Printing Committee of the House of Representatives ?
– All papers laid upon the Table of the House are submitted to it.
– Does not a Minister sometimes move that a paper be printed ?
– Not often, I think. I repeat that as the powers we asked for were not conferred, we had no reason for meeting,, and consequently have not met since.
– The situation appears to be this - that the Printing Committee has no duties whatever in respect of papers which are laid upon the table of the Senate, and are ordered to be printed. I suppose that the powers of the Committee come into play only in relation fo all papers that may be laid upon “the table, but are not ordered to be printed.
– That is the position.
– In relation to such papers the Committee could meet, consider them seriatim, and make recommendations with regard to their printing.
– And make an estimate of the cost.
– No doubt. The difficulty with regard to the waste of money in the printing of unnecessary papers is due to the fact that perhaps too great facilities are afforded for the printing of papers. The remedy for that, I say with all deference to my honorable friend the Minister of Defence, is for the Government to exercise some kind of control over (he papers that are ordered to be printed. Some papers are of importance. With regard to others, the members of the Government might move that they be referred to the Printing Committee for its consideration.
– That is the rule now.
– It is a rule which is “ more honoured in the breach than in the observance.” Last year it was the practice of my honorable friend Senator Drake and myself to consider whether any particular paper that was to be laid upon the table ought to be printed or not.
– We do the same.
– But my honorable friend, with his easy-going good nature, allows papers to be printed that ought not to be printed.
– That refers to the previous Government as well as to this one.
– My honorable friend adopts a tu quo qui, which, is not very appropriate while we are discussing this question. His remark is nottrue so far as concerns the late Government, but if it were true it would not enable him to get rid of the duty that rests upon him, and which he has been a little slack in discharging. He has a duty in respect to the Senate and to the Printing Committee. That duty is that when a paper is laid on the table by himself, or by Senator Keating, if a motion is submitted, he shall state whether he thinks it is desirable that it should be printed, or be referred to the Printing Committee. If that course were followed, the occupation of the Printing Committee would not be gone. It would have something to do, and there would be some reason for calling it together. That would obviate unnecessary printing, and would prevent an order of the Senate being made for the printing of a paper without sufficient information as to its’ value. My honorable friend has the remedy in his ownhands.
– Since I have been a member of the Senate every senator has desired that every paper which was thought worthy of being placed upon the table of the Senate should beprinted. If that is the case I do not see where the responsibility of the Government comes in, nor what need there is for a Printing Committee. My contention is that if any paper is of sufficient importance to be laid upon the table it ought to be printed. Honorable senators cannot be expected to wade through pages and pages of writing and typescript.
– The fact that the printing of documents costs money ought to appeal to the honorable senator.
– The cost does not appeal to me. My honorable friend maybe one of those “ penny-wise and poundfoolish “ people of whom we sometimes hear. I do not profess to be one of them. We are here to do the business of the country, and we ought to do it in the best possible way. We cannot be expected to wade through piles of manuscript in search of important facts. The records of the Senate are of sufficient importance for them to be printed. We cannot carry on the government of the country without expenditure, and there is no use in “ straining at a gnat and swallowing a camel.”
– I share Senator Stewart’s opinion that every paper that is of sufficient importance to be laid upon the table of the Senate ought to be printed, and that we ought not to be at the mercy of a Committee which may be influenced one way or another as to the importance ofa particular paper. I can instance a case which afforded me considerable annoyance. Last session, or perhaps the session before, a very interesting pile of letters was laid upon the table for our inspection. They had reference to Government House, Sydney. I made some notes from them. Those letters are not now available, because they were not printed. Apparently, they did not reach the hands of the Clerk in the ordinary formal way. They would be particularly valuable in connexion with a series of letters which have been printed. The letters to which I allude were handed to the Commonwealth Government by Sir Harry Rawson, Governor of New South Wales. The letters which have been printed were handed to the Government by the present Government of New South Wales. The two lots of letters throw a most interesting light one on the other. This is a case in point, which shows the desirableness of printing nearly every paper laid upon the table. Senator Smith has raised the question of petitions ; and here is an example of what may happen under the present system. Here we have what, to my mind, is an absolutely unimportant petition, which hasbeen put into print at the instance of the Printing Committee of another place.
– Does not that only show that a joint Committee is required?
– I do not think that a joint Committee is necessary. If an honorable senator succeeds in passing a motion that a return’ be laid upon the table, he ought to be entitled to have that paper printed, with the sanction of the Senate, and without reference to any Committee. It is obvious that an honorable senator would, not submit a motion of the kind unless he were acquainted with the contents of the return, and deemed them to be of value, or desired that they should be circulated for some useful purpose.
– Let us return to the old standing order, which empowered a Minister to move that a paper be printed.
– The Minister, or any honorable senator, has at present the power to move that a paper be printed, and it is for the Senate to agree or disagree; and, so far as my experience goes, that is the ‘best position.
– The logical thing would be to abolish the Committee.
– So far as the functions of the Committee are concerned in sitting in judgment on what has or has not to be printed, it might fairly be abolished. I presume, however, that they have other duties.
Question resolved in the affirmative.
Bill received from the House of Representatives, and, on motion by Senator Keating, read a first time.
asked the Minister representing the Minister of External Affairs,upon notice -
– The answers to the honorable senator’s questions are as follow : -
asked the Minis ter representing the Attorney-General, upon notice -
What was the total expense caused by the postponement of the sitting of the High Court in Melbourne, from the and to the 9th of May,1905 ?
– The amount was £15.
– Does that amount include the expenses of the defendants and their witnesses?
SenatorKEATING. - Ipresume not; the questions asked do not deal with that matter.
– Does the amount include the heavier fees insisted on by counsel? I ask this question because I dare say Senator Keating is aware that the Crown Solicitor reported that, in consequence of the sudden adjournment, counsel required heavier fees, on the ground that their engagements for the week were put off.
– I presume not. I do not know that the Government have any means of demanding that information from counsel.
– The Government have the information.
– The question asked by Senator Stewart was as to the total expense - that is the expense over which the Commonwealth had. any control.
– Is the Minister aware that the Crown Solicitor reported that heavier fees were required?
– I do not know whether this is a cross-examination1 or not.
– That is not the way in which to answer a question. If the Minister has not the information let him sav so.
– If the honorable and learned senator wishes for this detailed information, I ask him to give detailed notice.
– I shall certainly give notice.
Bill presented, and on motion by Senator Keating read a first time.
In Committee (consideration resumed from 30th August, vide page 1652):
Clauses 2 and 3 agreed to.
Clause 4 (Interpretation).
– This clause contains definitions of terms which occur in very many places throughout the Bill; and, following the practice that has been adopted on previous occasions in connexion with lengthy measures, and which is in conformity with the procedure of the British’ House of Parliament, I suggest that the consideration of the clause be postponed until after the main provisions have been dealt with. In English Bills, the definitions are, or were, usually placed at the end, but in Australia, for convenience more than for any other reason, they are placed at the beginning. If we pass the definitions as they stand, we may find that we have, to a certain extent, circumscribed ourselves in regard to amendments later on in other clauses. I move -
That the clause be postponed.
– I commend Senator Keating for the wise course he has taken in moving, for the reasons given, the postponement of the consideration of this clause. This is not a Bill for party discussion; and, seeing that we are endeavouring to legislate with a view to practically codifying the law in relation to copyright, and to bringing that law up to* date, it is desirable that we should all assist, as far as possible, to that end. It is perfectly possible that all honorable senators may not be present when the other clauses have been dealt with, and clause 4 comes before us again, and I should like to make one or two suggestions with a view to improving definitions which have been introduced. I ask honorable senators to consider the suggestions I make, not merely! in relation to this clause, but also in relation to other clauses. I dare say Senator Keating will forgive me for sounding a sort of preliminary note of warning as to the source of a large number of the new clauses. According to a very useful paper which has been circulated, those clauses have been taken, not from any legislation now in force, but from a Bill which has been before only one branch of the British Parliament. We must not, therefore, adopt those new. clauses on the assumption that they have any authority from previous legislation, because the Bill in England has never yet been considered by the British Parliament.
– The Bill was considered in the House of Lords, and sent on to the House of Commons.
– We do not attach overwhelming importance to the fact that a Bill has been considered by one branch of the Legislature.
– The gentlemen who did give attention to this Bill in the House of Lords are very able authorities on the subject.
– That was in 1900, since which time the measure has remained in the limbo of neglected Bills. We cannot regard it as having passed through the fire of parliamentary criticism, or as having been followed by practical application, and experience. These particular clauses have not, therefore, the legislative stamp upon them, nor have we the advantage of any practical experience of their working as a part of the law of the land’. They may be good or bad, but I am sure Senator Keating would not ask honorable senators to accept them merely because they happened to appear in the English Bill. They have really no more weight as having been taken from that Bill than have the recommendations of the’ Royal Commission! which sat now thirty years ago, in 1875, and’ reported twenty-seven years ago in relation to the law of copyright. Its report has for twenty-seven years lain in the archives of the Imperial /Parliament, gathering dust. No step in the form of legislation appears to have been taken until the introduction of the Bill of 1900. I take great exception to some of .these clauses, and whether they be good or bad in the opinion of others we should apply to them our own original consideration, and adopt them if we are satisfied that their objects, and the methods adopted for carrying out those objects, are good, and not simply because thev bear the stamp or imprimatur of the Imperial Legislature, which they, do not. I take the opportunity on this clause of making these remarks as applicable to a large number of the clauses which the very useful document circulated amongst us indicates to be clauses taken from the Copyright Bill of 1900 and the” Copyright (Artistic) Bill of the same year. With regard to this clause itself, I invite Senator Keating to consider between now and the time at which he will submit it to the acceptance of the Committee, whether the word “ author “ should not be defined. There is a definition as to what it shall include, and it is provided that it shall extend to the personal representatives of an author, but there is no definition of the word. It seems to me that that is especially necessary.
– Does it not mean the actual author or his representative?
– I think Senator Dawson will find that the definition might be improved, and it should be inserted iri the interpretation clause, instead of in another part of the Bill. 1 suggest to Senator Keating also that throughout the definition clause wherever possible he should adhere to the word “includes” instead of using the word “means.” For instance, in the Bill it is provided that an artistic work “ includes,” or an author “includes,” whilst a book “means.” The word “includes” will give exactly the same effect, and will not shut out the ordinary interpretation.
– We should make all the definitions inclusive ?
– Yes, all inclusive. I have often found that in drafting a measure it is very much more satisfactory, to use the word “ includes,” and I suggest its use for the consideration of my honorable and learned friend.
– - How would it apply to a lecture?
– There would be no difficulty about that. It is worthy of consideration whether we could not improve the definition, of the word “author” in its relation to a lecture.
– Whether it means the man who writes or the man who recites ?
– Whether it is the man who writes, or delivers, or both.. There seems to me to be a gap here, and, if possible, we should close it up. I invite consideration of the effect of including “newspaper” in the definition of a “book” in relation to the other clauses of the Bill. Senator Keating will find that it is also included in the definition of a “ periodical.”
– But the two words “ periodical “~ and “ book “ are not exclusive throughout the Bill.
– They are not exclusive, but in looking through the other clauses my honorable and learned friend will find that it will be well to keep to one definition of a particular subject of copyright. If we do not, it will, I think, be found that there is nothing more likely to create confusion, in the administration of such, a measure as this, which in some respects is more intricate and complex than is a Patents Act than a departure from that principle. We should “define the word “book” as including “newspaper,” or the word “periodical” as including “newspaper,” and not have two different words defined to include the same thing. Then in the defini tion of “lecture,” I do not quite know what is meant by the expression “ a piece for recitation.” A piece for recitation would ordinarily mean a poem written by some one else, an arrangement of poems, or an arrangement of some rhetorical and eloquent piece of prose. The phrase is not very intelligible to me. In offering some observations on the second reading of the Bill, I referred to the definition of “publication.” The matter is the subject of considerable discussion in the Publishers’ Circular of May last, in which some questions are asked indicating this difficulty, which I invite my honorable and learned friend to consider. We know that a number of books are published for private circulation. We know also that there are a number of literary societies - Shelley, Shakspeare, and Browning societies, and a number of others. There are also scientific societies, which issue their proceedings and reports to members and subscribers only. Iti addition, they sometimes publish works which may be out of print for the benefit of their members and subscribers, and issue them to those persons only. In the case of books printed for private: circulation, the result will be that if that private circulation does not amount to publication, and we do not make it publication, the copyright will not begin to run.
– The book will not be “up for sale.”
– What I am suggesting is that we should make it publication.
– Does not the expression “or the first distribution of copies of it” cover that?
– I thinkthat probably it was intended to cover it. What I suggest is that after the words to which Senator Pearce has called attention, there should be added the words “whether marked for private circulation or not, and whether to subscribers or to private friends or not.”
– The honorable senator is proposing to penalize a free gift.
– No; what we are dealing with is the law of copyright. On the one hand, we desire to protect the interests of authors, and on the other hand we wish to give the community the benefit of these books. The same mischief is created if the author of a book should make an edition of, say, twenty copies. No one else has the right to reprint that book. He has made his publication, and if he has sold his copyright, the result will be that the first edition of the book will increase enormously in value, and if it suits the publisher, ten years afterwards, when the value of the book has increased enormously, he may publish another very limited edition, and the general public will be unable to secure the book at all. So it is with books published for private circulation. Many persons adopt this course from a retiring disposition, and unwillingness to offer themselves to public criticisms - to seem to be publishing a book for sale - and for various other reasons. Some of them forget that the public have also an interest in their books, and that their benefit to the community must be considered as against the rights of the authors.
– Would not the honorable senator’s proposal play into the hands of those who would keep their books from the public?
– No ; if they are published for private circulation only, there are two things which will result : they will remain the private property of the author, and no copyright attach to them. No other person can print them. On the other hand, if such’ a distribution is declared to be publication, then, the author will be entitled to the copyright from the dale of that distribution.
– And he can make his own terms as to the publication of such books ?
Senator Sir JOSIAH SYMON.Exactly in the same way as the author of any other book. But if he publishes for private circulation, the copyright does not begin to run against him until publication for the public.
– But he could not prevent any one pirating his book.
– Certainly he could, because it would not be public property.
– Under the common law?
– Yes, under the common law. We step in with our legislation and give him a legislative copyright from the moment of publication to the world; but if he keeps his hand on the book and marks it private there is no publication. That is a difficulty which has already arisen, and a perfectly impractical proposal has been suggested in America to make two kinds of copyrights, one a sort of private copyright, and the other a public copyright. That, of course, is only introducing complexity. My own view is that the expression, “ or the first distribution of copies of it “ may cover my suggestion. Probably it was so intended; but it should be made more clear.
– That was the intention.
– -I am sure it must have been the intention, because it is the modern idea that if there is a system of copyright established there should not at the same time be something else which would give an absolute right to deprive the public of the benefit of the work, which is in reality published, although not technically.
– Will the definition of pirated book meet the difficulty?
– That does not touch the point, because there is no copyright. This provision relates to books which are circulated amongst friends for private use. There is no copyright’ in the books, and they cannot be reprinted by any one but the authors. What I suggest is to make it quite clear whether they are marked for private circulation or not, and whether issued to subscribers or to private friends or not.
Senator KEATING (Tasmania- Honorary Minister).^ - I am very glad to have had the advantage of the criticism of some of the definitions by Senator Symon. But while I do not agree in every instance that there is a necessity for any of the alterations he has indicated, still everything he has said will receive the fullest consideration, and I can assure him and others that the whole subject-matter off the clause will, receive the best possible attention before it is again considered, in order that it may be framed in such a way as to give proper effect to the desire of Parliament. With regard to the criticism which Senator Symon directed to the sources of many of these clauses - the clauses in the Copyright Bill and the Copyright (Artistic) Bill - I agree with him that they have not yet received the stamp of legislative authority. While one of these Bills was passing through the House of Lords, it was dealt with by gentlemen than whom perhaps few men in the Empire are more qualified to speak on this important department of law. The honorable and learned senator has said that for that reason we should be to some extent chary in giving the same force and consideration to these clauses as we would if they were the substance of an enactment which had borne the test of experience. That is perfectly correct, but at the same time I would take this occasion to remind honorable senators that in the instances in which we have taken advantage of these clauses, we have not in many cases slavishly followed their verbiage. In some instances, as they will see by reference to the memorandum, we have taken the substance of the clauses and improved upon them, as we think. In other instances, the clauses have been adopted perhaps bodily, but most of these clauses were not new, and contained nothing novel or original or the part of their framers. They were merely a concise expression of the common law on the subject, as it has been determined during the last century or more, by the judicial interpretations given by the various courts. Honorable senators may think sometimes that, in adopting a clause practically as it stood in the Copyright Bill, we were subject to the criticism which has been levelled at us by Senator Symon, that we were adopting something for which there is no legislative warrant, and which has not had the actual test of experience. But during the course of their inquiries, the Royal Commission to which he referred, and which sat some twenty-seven or thirty years ago, not merely confined themselves to the existing statute law, but considered the operation of that law, how it affected the public generally, authors, and publishers, and also how it had been interpreted from time to time by the various judicial tribunals. Where it was possible, as it was in many instances, to get from the number of cases in which there was no conflict a clear and correct expression of a principle of law, they adopted it, and put it in a concise form, making it statutory instead of common law. In such instances, I think we have been perfectly justified, so long as the verbiage was all that could be desired, in adopting clauses which are merely a concrete expression of the common law. In circulating this memorandum, and drawing the attention of honorable senators to similar provisions elsewhere, we are not seeking by any means to wrongly impress on their minds that the clauses which in many instances have been the sources of these provisions, have anything like legislative authority. I think that the only reason why they have not the force of legislative authority is that assigned by Mr. Scrutton, whom I quoted in my second-reading speech, that the block of business in the House of Commons has for many years been so great, and there are subjects of such party and vital interest arising there every day, that matters of this character are, by the greater number of honorable members, practically looked upon as being of an academic character.
– The copyright law of England, although distributed over a great number of Acts, is a very satisfactory one.
– Yes, but it is very difficult for any person, who does not apply himself to its study for a great length of time, to become familiar with it in detail.
Motion agreed to; clause postponed.
Clause 5 agreed to.
Clause 6 -
No copyright, performing right, or lecturing right, shall subsist under this Act in any profane, indecent, seditious, or libellous work or matter.
– “ Profane “ is a very vague term indeed to use. I do not know what it means. Of course, we are accustomed to the expression “ sacred and profane literature.” I think that the word blasphemous expresses what we intend shall hot have the benefit of copyright. I move -
That the word “ profane “ be left out, with a view to insert in lieu thereof the word “ blasphemous.”
– I have no objection to the amendment, because I think the word “blasphemous” is more explicit than the word “profane.” The distinction between sacred and profane is one that might vary, according to the standard of each person. Moreover, the word “ blasphemous “ is used in connexion with the subject in most of the English text books.
– What is the definition of the word blasphemous?
– In many instances the Courts have determined what does and what does not constitute blasphemy.
– I can see that unless we have a definition of this word serious injury may be done to certain persons. I would suggest the omission of the words “ profane” and “blasphemous.” I do not see why my freedom of thought should be restricted in that direction.
Amendment agreed1 to.
Senator Sir JOSIAH SYMON (South Australia). - I move -
That the word “ indecent “ be left out, with a view to insert in lieu thereof the word “ immoral.”
Senator Keating will recollect that a good many years ago it was decided, in the Bradlaugh case, that unless the work was of a very grave and prurient character the word indecent could not be applied. This was laid down in the case of the prosecution of the book entitled The Fruits of Philosophy. Of course, all such books would be covered by the expression “ immoral.” I do not think that any one of us desires that an immoral publication, so decided by the Courts, ought to be the subject of copyright.
Senator KEATING (Tasmania- Honorary Minister). - I do not see that it would be an advantage to substitute the word “ immoral “ for the word “indecent’,” because, however wide and vague the term “profane” may be, the term “ immoral “ is still more wide and’ vague. The question of morality, or immorality, especially in connexion with literature, is one upon which it would be very difficult to get any two minds to agree. There are books which are written in the ordinary course, and read very widdy bv persons of both sexes and of all ages. To the minds of some persons, these works are perfectly pure and moral, but to the minds of others they are highly immoral. The term “ immoral “ is too wide and comprehensive, and likely to be subject to many different interpretations. If the word “indecent” does not meet with the approval of the Committee, the word “ obscene “ might meet the cases with which we wish to deal, but I think the word “ immoral “ is capable of too varied an interpretation.
– I think it would be better to use the word “ obscene.”
– Is not the word “indecent” used in many of our Crimes Acts?
– Yes ; and if honorable senators wish to strengthen the clause we might insert also the word “ obscene.”
– I would not do that.
– The word “immoral “ is one the meaning of which we should never be able to be certain.
– Will the honorable senator quote clause 4 of the English Bill?
– The Copyright Bill as passed through the House of Lords, in clause 4, sub-clause 4, contained the words “ any profane, indecent, seditious, or libellous book.” The word “ immoral “ would be too varying a term. One might, for instance, ask for the opinion of the public generally as to the twelve most immoral books that have, recently been published; and I venture to say that perhaps 80 or 100 books would be heavily voted for as coming under that description. Some books which have been published within the last five years are considered by some people to be immoral, whilst other members of the community take quite a contrary view. It will be convenient to adhere to the words of the Copyright Bill as passed by the House of Lords as far as possible, so that in the event of the Imperial Parliament hereafter passing this legislation, our measure will be uniform with theirs.
– I trust that the Government will not agree to the insertion of the word “ immoral.” If that were done we should be brought face to face with’ difficulties arising through the indefiniteness of the word, and should never know where we were. The word “ immoral “ is often used with regard to political works. I have heard it applied to the teachings of Henry George, and to the single tax.
– That is political immorality; but that is not the sense in which’ the word is here used.
– It is an instance of the vagueness of the word. I am afraid that if it were inserted in this Bill, many such hair-splitting definitions would be given, and we do not know what injustices might be done. The word “ indecent,” or “blasphemous,” would be far more definite than the word “ immoral.” It would never do to put in an Act of Parliament a word that would lead to so much difference of opinion. I can quite believe that Senator Symon, looking at the matter from a professional stand-point, might like to insert a word that would lead to much profit to the lawyers, but we do not want to make our Acts of Parliament a means of increasing the number of cases in the law courts
– This clause would apply to plays as well, and it would be a very difficult question in such a case.
– It is very difficult to say where the immoral aspect of a play arises.
– The word “ indecent” is almost as vague.
– To my own satisfaction, I can interpret the word “ indecent,” but I should have some difficulty in saying what was immoral.
Senator Sir JOSIAH SYMON (South Australia). - My honorable friend Senator de Largie stopped when he was getting most interesting. I thought he was about to define the word “ indecent,” but he abstained from that exceedingly interesting effort. I frankly confess that if I could think of any word that would carry out the sense and intention of the Legislature better than the word “ immoral,” I should prefer it. My idea, of course, is to avoid those consequences to which my honorable friend alluded, as leading to undue litigation. We ought to see to it that the language of our Acts of Parliament is so expressed that the possibilities of dispute are as far as posssible avoided. What impresses me in relation to the word “indecent” is this: There is verv great difficulty in saying to what books it applies.
– How would “prurient “ do?
– I think that would be better than “indecent,” but “immoral” is the best word of the three. The word “indecent” is extremely difficult to define in relation to the law of copyright, so as to exclude from its benefit the authors of productions which may be described as indecent. I do not think, for instance, that any one would wish to give the advantage of copyright to books like The Fruits of Philosophy. There may be a demand for books of that character greater than for other books which could be mentioned.! What we want to stop is the making of such books a profitable property in the hands of their authors. For myself, I say at once that such a book as The Fruits of Philosophy should not have the advantage of copyright. That is what we ought to stop. Nevertheless, when a prosecution took place as to that book, the point was raised as to its being an “ indecent publication,” and the prosecution failed. It was not regarded by the Court as indecent; and, therefore, such a book would be protected by copyright, and the consequent profits from its sale would go into the pockets of the author.
– Would not the result have been the same if the term used had been “ immoral ‘ ‘ ?
– No, I think not. The word “ immoral “ is much wider, and would have enabled the Court to say that the book was a violation of the law, and came within the definition of “immoral book.” But as the word used was “ indecent,” the’ Court said that the publication was not an indecent one; it was an immoral book, but not indecent in the legal sense of the term as being calculated to arouse passion. It is from that point of view that I think “ immoral “ is the better word for the purpose of preventing copyright being extended to books which are in a grosser sense immoral. We can all attach a definition to the word “immoral,” and it would be for the Court to say whether a book came within the legal definition or not. Senator Keating says that the word is too wide to use in a law of copyright, by which we are giving a property to authors in their books. I think it would be better to have a larger and wider word than “indecent,” which has been subject to decisions and has been found practically to be insufficient. My honorable friend said something in regard to plays which might be regarded as having immoral tendencies. But we cannot stop that.’ It is not the purpose of this Bill to stop anything of that kind. Its purpose is not to give a property to the author of a production which violates certain conditions. My honorable friend also said that we should retain the word “ indecent “ in order to secure uniformity with the Bill which was passed by the House of Lords. But we have not that uniformity yet, and the probability is - or, at least, there is a possibility - of that word, iti the’ light of the decision in the Bradlaugh case, being eliminated, and another more effective word for the purpose we have in view being substituted. If my honorable friend feels strongly about the amendment, I will not press it, but ask him to reconsider the point, so that we may have another oppor- tunity of dealing with it 3 and I am quite sure that he will see that we require some other word than ‘ 1 indecent, ‘ ‘ which” has been tried and found wanting, not for the purpose of preventing the publication of books, or dramatic pieces which a hypersensitive man might regard as having an immoral’ tendency, but of preventing works having that tendency acquiring copyright and thereby becoming a profitable property to their authors.
–We should be’ careful not to insert any provision which may take away an author’s right to his own productions simply because of any feeling of prejudice which may exist in the mind of the general public. It must be remembered that some of the finest writers of the race to which we belong have at various times written books which a great many people have regarded as both immoral and indecent; and even now classics of the English language are held to be open to that condemnation. Take Byron, for instance. Some of his finest works are commonly set down as sensual, and a great many people look upon them as being highly indecent and immoral.
– The same can be said of the Bible.
– And of the works of Shakspeare.
– I had intended to allude to those books. Some of the finest descriptive poetry in the English language was written by Byron, and occurs in his Don Juan, which is usually regarded as most sensual, and by some as the most indecent and immoral work of poetry we have in the language. Even Shakspeare, who is recognised as being perhaps the greatest poet and dramatist the world has yet .produced, has written passages which very many people would say are absolutely immoral and indecent.
– Even if there were one’ questionable passage, nobody would say that a poet’s works were immoral or indecent on that account.
– A poet does not publish’ his works in globo, but may i §sue them in fugitive pieces at a time. I do not think that Byron ever published more than two cantos of Don Juan at a time, and that poem is held to be immoral and indecent by the prudes of the com munity. It would be unfair for any Parliament to attempt to limit a genius in that way.
– Does the fact that Byron wrote the poems make them less indecent or immoral ?
– The general community have recognised that Byron’s works are only immoral’ and indecent to the prudes of the community.
– That would apply to the work mentioned by Senator Symon.
– Almost every poet is open to the same charge at the hands of the prudes, and I might name Shakspeare, Pope, Shelley, and others. Even Robbie Burns, the immortal Scotch poet, is regarded in some quarters as immoral and indecent in some of his poems. I would suggest the word “prurient” as being better than “ indecent,” because it h’as a far stronger meaning. I am sure we have no desire to give any property in a prurient work.
– I do not think anybody would publish a book which was indecent within the definition iri the Bradlaugh case. .
– But the owner of the copyright might be put to considerable expense and trouble by having to resort to litigation in order to “establish his rights. There are people who regard a nude statue as indecent ; but, of course, a work of art of that kind is only indecent to the prudes.
Senator Sir JOSIAH SYMON (South’ Australia). - r have suggested the substitution of the word “ immoral,” but I shall not persist with the amendment if Senator Keating is of opinion that the word “ indecent” is sufficient. What we desire to do is to prevent the acquisition of a valuable property in a book which comes within a particular description.
Senator KEATING (Tasmania- Honorary Minister). - I have listened to the remarks of various honorable senators, and I am still of opinion that it would be very undesirable to substitute “immoral “ foi “indecent.” The word “ immoral “ is wide and vague, and capable of being variously interpreted according to the individual charged with the interpretation.
– Surely we do not wish to give copyright in an immoral book?
– Quite so.* I have not with me the decision in the Bradlaugh case ; but I know that many points of law assisted in! its .final determination. I should like to point out the way in which this clause is most likely to be brought into operation. Clause 13 provides -
Copyright shall subsist in every book, whether the author is a British subject or not, which has, after the commencement of this Act, been first published in Australia, before or simultaneously with its first publication elsewhere.
Under that provision, if a book of an immoral or indecent character is first published in Australia, or, in Australia simultaneously with its publication elsewhere, there is copyright without registration. The question of determining whether or not a book is immoral or indecent, and, as such, is disqualified from copyright, will most likely arise when some private individual pirates the book, and the author or owner of the copyright takes proceedings to restrain him, or brings an action for damages for infringement. In such a case, the defendant would set up the defence that the plaintiff was not the owner of a copyright, because the book was of an “ immoral “ or “ indecent “ character- whichever word may be used. Such a case would hardly ever arise, unless the book was of such a strong character, either immorally or indecently, that some private individual, from the knowledge he had of it, regarded it as not entitled to copyright; and then it would come under the consideration of the Court. Under the Bill, when an author or owner of a copyright desires to bring an action for damages or to restrain piracy by injunction, he has first to register; and the registrar might hold a book to be immoral. It would then be impossible for the author or alleged owner of the copyright, to sue at all, unless he obtained from a Judge a mandamus or a ‘rectification1 order compelling the registrar to register, and that mandamus or order, of course, would be on the grounds that the book was not immoral. When we consider how this clause is likely to operate, with the word “ indecent “ in it, it does not seem likely that anybody will be able ,to get copyright in an immoral publication. Even if we inserted a stronger and wider term, such as “immoral,” it would still be necessary for some third party to take action in the nature of piracy, before the question could arise. An owner of a copyright in a book published in Australia would, as I say, not have to register until his rights were infringed, and he wished to take action. If, on the other hand, the book was not published under the provision of the sub-section I have just quoted, but was produced abroad, and the author wished to get the benefit of the international provisions of this Bill, he would come here with his certificate. I do not think that even if we made the amendment suggested’, and an author came from abroad with an immoral or indecent book, “lie could be denied the benefits of the international registration, because we are bound by the reciprocating terms of the Berne Convention. Under the circumstances, I think it is perfectly safe to use the term “ indecent,” because, whether we use one term or the other, and split straws as to what is or what is not immoral, it will still remain for some individual in the community to take action, before the question of the immorality or indecency of a work can be decided. And no individual would take action unless he felt that he could pirate the book without any danger, on the ground that it was not entitled to copyright under clause 6. No one would pirate a book because he thought it immoral, or on the border line, but’ would wait until its character was bad enough to enable him to pirate it on the ground that it was what we call indecent. After all, the censor in the community would be the individual who wished to take advantage of this clause, in order to make some profit himself, and to be able to defend himself from an action for piracy on the ground that the book was of such a bad “character that it came within the prohibition of clause 6.
Senator Sir JOSIAH SYMON (South Australia). - Senator Keating is quite right in saying that the question of the moral character of a book would arise when some body attempted piracy, and the author endeavoured to prevent him. But Senator Keating has missed the point, which is that a copyright gives a valuable property to the person who writes the book, and that, if copyright be withheld on the ground of indecency, there will be no inducement to people to write indecent and immoral books. What we are legislating for is to do justice to authors by converting an intangible thing, in which there is no property under certain circumstances, into a tangible and profitable possession. There are certain productions which we ought not to make valuable, and, therefore, we withhold the temptation to write books on the assumption that they will be a profitable property. Books are written in order that they may be sold ; and if there is no temptation to write them, the possibility of piracy does not come into play. No doubt if such books were copyrighted, the question would arise as between the pirate and the original author, but; we wish to stop the writing and publication of them, or, at any rate, to withhold from them a profitable copyright. The probability is that when this matter is further considered, it will be found to be desirable to eliminate the word “indecent” I have suggested a word which has a definition and a scope that would prevent a copyright being acquired for a book of the particular description under discussion.
– State legislation may do much in the way of restricting the printing of such books.
– But it would not take away the property in the copyright, and might be interpreted differently from Commonwealth legislation. The word “indecent” appears to me insufficient, and I admit that the word “immoral”, is open to criticism as to its scope. I cannot think of a more appropriate word, though “prurient” is very good. The matter had better be given further consideration before we vote as to a change.
Amendment, by leave, withdrawn.
Clause, as amended, agreed to.
Clause 7 (Application of the Common Law).
Senator Sir JOSIAH SYMON (South Australia). - I see no reason to legislate that the common law of England shall apply, but a clause of this kind at once raises a doubt as to whether.it prevails here. The common law of England is in full force unless altered by Statute; and, in my opinion, the clause ought to be eliminated.
Senator KEATING (Tasmania- Honorary Minister). - This clause deals with unpublished literary compositions, that is, with the manuscripts of authors. In its strictest sense one could hardly say that the law dealing with unpublished literary manuscript is copyright law because copyright law does not come into force in its truest sense until a manuscript has been published. But this is a subject which has always been considered cognate to the law of copyright.
– We do not alter the law of England with regard to unpublished manuscript.
– There are several curious features of the law dealing with unpublished manuscripts, but thev are all dealt with by the text-book writers on the subject of copyright. For instance if an author becomes bankrupt his unpublished literary manuscript does not pass to the trustee or assignee in bankruptcy, whereas his copyright does. Again, so far as manuscript is concerned, an assignment of it does not of itself carry with it to the assignee the right to publish it. There are other peculiar features about it, but the main point in connexion with us and with this clause is that according to the law at present, if an author does ‘ not publish his manuscript and it gets into the hands of any one else, he has the power at common law to restrain the publication of that manuscript. In order to do that he has to invoke the intervention of a Court. If we pass this Bill without this clause, and an author were to take out an injunction in a Victorian Court to restrain some person from publishing his unpublished literary manuscript that injunction would have force and effect throughout the State of Victoria only. If the person prohibited’ from publishing that manuscript went to South Australia, there would be nothing to prevent him disregarding the injunction of the Victorian Court, and publishing it there.
– But that does not touch this Bill. The clause does not deal with procedure.
– Undoubtedly ; but at present the common law of England with regard to unpublished manuscript does not apply throughout the Commonwealth as one area.
– Undoubtedly it does. The common law of England applies throughout the Commonwealth except where it has been altered bv Statute.
– It applies throughout the Commonwealth in the sense that it applies throughout the six different States. Some few years ago Mr. Arnold, who brought some plays out here, took proceedings in New South Wales, bv means of an application for an .injunction, to restrain a man from infringing his performing rights in those plays. He succeeded in getting at common law injunction in restraint of this man.
– It would bean injunction in equity.
– I understand that he took out a common law injunction to restrain this man from infringing his performing right ; but the man got across the Queensland border, and then snapped hh fingers at the injunction.
– Arnold could have taken the same action in Queensland.
– But he would have had to go to Queensland to do so.
– So he would if this clause were passed.
– No; I submit that if we pass this clause the common law will apply throughout the Commonwealth.
– This will not affect procedure.
– Undoubtedly the passing of this clause will make the common law apply throughout the Commonwealth as one area, and then any injunction which might be obtained in1 a competed Court in any one of the States to restrain publication by a certain person of the unpublished literary manuscript of another would operate not merely in that State, but throughout the whole of the Commonwealth.
Senator Sir JOSIAH SYMON (South Australia). - I must say1 that I have been staggered to hear my honorable and learned friend attempt a defence of this clause. I say, after the very greatest consideration, that he has confused1 two things - procedure and the operation of the principles of common law. It is quite an elementary thing, and a point with which I am sure my honorable and learned friend is familiar, that the common law of England applies throughout the whole of the Commonwealth.
– As ai Commonwealth?
– As a Commonwealth. It applies throughout the Commonwealth and in every State. Every student, as my honorable and learned friend must know perfectly well, recognises that as an elementary principle. Then the honorable and learned senator says that if steps are taken to protect unpublished manuscript in one State, and an order is made restraining its publication, that order is not operative in another State. I do not know whether that is so or not, having regard to the various steps we have already taken to facilitate procedure by making the orders and judgments of one State operative and enforcible in another. But that is a question of procedure; it has nothing whatever to do with the operation of the common law, and this clause does not touch it at all. It is a declaration which seems to me to suggest a blemish on what we hope will be an exceedingly good Bill. We are, in this clause, making a declaration which will stamp us as forgetful of the ordinary principles of the law, and as practically noodles - a declaration, not regulating any procedure, as that might be done in another way, but that the common law of England applies, unless altered by the laws of the Commonwealth1. Of course, that is so. We brought here the common law of England when Australia and every State of it was founded. That common law applies throughout every inch of our territory, whether within a State or within the ambit of the Commonwealth. It remains until we alter it. We can alter the common law as applicable to Australia, but until we do so it remains in force. It is of no use to deal with this Bill from the point of view of trying to be critical, and I do not propose to deal with it in that way. I have not examined the Acts, relating to execution and process, and the enforcement of judgments. There is Commonwealth and State legislation on that subject ; but the introduction of a provision of this kind is, I think, without precedent. I doubt whether my honorable and learned friend can mention any Act which this Parliament has passed, in which it is stated that the common law of England shall apply unless altered by our legislation. It does apply.
– It might not apply throughout the Commonwealth, because there might be State legislation on the subject.
– But all such State legislation on the subject comes to an end immediately we pass this Bill. That is the object of it. State legislation and Commonwealth legislation on the same subject cannot stand together.
– I beg the honorable and learned senator’s pardon.
– Surely my honorable and learned friend understands his own Bill ?
– Yes, I do.
– This is a Bill to give effect to our powers, as the Parliament of the Commonwealth, to legislate on the subject of copyright, and the moment it becomes law away goes all State legislation on the subject, except as regards existing rights, which, of course, are protected, as they should be. It would be a distinct blemish on this Bill to provide that the common law of England shall apply when we know that it does, except where we alter it. As to procedure, I say nothing, because that is another matter. But that the common law is the same here as in South Australia, and will be the same after the passing of this Bill, is absolutely undoubted, and we should not by the insertion of such a provision throw any doubt on the subject.
Senator KEATING (Tasmania- Honorary Minister). - I pointed out’,, during the course of the honorable and learned senator’s remarks, that in the absence of this provision, the common law of England need not necessarily apply in regard to unpublished literary manuscript throughout all the States.
– It must apply.
– It may have been varied by existing State legislation.
– That State legislation comes to an end entirely when we pass this Bill.
– I differ entirely from the honorable and learned senator on that point.
– Will Senator Keating look at clause 8 ?
– The next clause deals only with the question of copyright, and at the beginning of my remarks, in opposing the suggestion that we should strike out this provision, I pointed out that the subject of unpublished literary manuscript in its entirety is cognate to that of copyright, father than a subject wholly within the domain of copyright in the truest and strictest interpretation of that term.
– It is not copyright at all.
– It is not, but it is an adjunct, so to speak, of copyright, and precedes it.
– It is not an. adjunct ; an unpublished manuscript is a man’s own property.
– I put it in this way : that the law with’ regard to unpublished literary manuscript has a distinct relation to copyright. The preparation of the manuscript necessarily precedes publication, and the law regarding manuscript is necessarily connected with that of copyright being antecedent to it.
– A manuscript is a man’s own property as much as is his table or his chair.
– Exactly. There are peculiar characteristics with regard to manuscript to which I have already referred, which do not apply to a copyright. -I have shown that it does not pass to a trustee in bankruptcy, and that its assignment does not carry with it the right to publish.
– That is all by law. We do not alter that.
– We do not alter it, but in the absence, of this provision with regard to unpublished literary manuscript, we should leave the law with regard to the publication of manuscript still within the domain and the province of the several States. They may still legislate on the subject, and different laws dealing with it may be passed by different States. In such a case a person who would get a copyright under this Bill in one State would perhaps start under disadvantages as compared with another person starting from a different point in another State. So we propose to make it plain and explicit that, subject to this, and any other Acts of this Parliament, the common law of England, with regard to unpublished literary manuscript shall remain in force and effect throughout the Commonwealth. With regard to procedure, I again repeat that when we make this matter the subject of Commonwealth legislation, with which the States cannot hereafter interfere, we provide for uniform procedure throughout the Commonwealth.
– We cannot provide for procedure in this Bill.
– We can make a basis for it when we legislate on the subject in this Bill.
– We are not legislating on this subject. Fancy legislation on the subject of the ownership of a piece of paper !
– The honorable and learned senator will not deny this proposition : That if we leave this clause out it will remain within the province of every one of the States to place on the statutebook specific and varying legislation with regard to the subject of unpublished literary manuscript.
– We cannot touch it in this Bill any more than we can deal with the ownership of a table or a chair.
– I think we can.
– The honorable and learned senator will find it difficult to give his authority.
– We can provide in this Bill, which deals with copyright, that the common law of England with regard to it in any particular shall remain in force, subject to this and any other Act of this Parliament, throughout the whole of the Commonwealth ; and if we do so, we shall have taken from the States for all time the jurisdiction to. deal with that particular subject of legislation. It must be remembered that in these matters the States have concurrent jurisdiction with the Commonwealth.
– The Commonwealth has no jurisdiction in regard to that subject at all.
– I submit that it has.
– Where do we get it?
– We have it as something incidental to the execution of our powers of jurisdiction in the matter of copyright.
– But it is not copyright.
– I am certain that we have jurisdiction in regard to this matter. I again point out that, construing the term copyright in its strictest and most rigid sense, this is a matter which does not wholly and entirely come within copyright law. as it has been and always must be dealt with in connexion with copyright law.
– No, it has not. A reference to it in a copyright law does not prove that it can be dealt with under a power to enact copyright law.
– I will ask my honorable and learned friend if he can refer me to any extended treatise on the law relating to unpublished literary manuscript which is not found in a text-book dealing with the law of copyright. This has always been considered as an adjunct of the law of copyright, just as have the questions of a performing right, and other rights which have grown up from time to time. I think it is desirable to provide that the law in regard to unpublished literary manuscripts so far as they may found copyrights shall subject to our legislation be uniform throughout the Commonwealth, and not to leave it to the States to legislate in the future on this subject divergently, and so to a very great extent nullify at its very source the advantages of uniformity that we are trying to insure for those who will get copyright under this Bill.
Senator Sir JOSIAH SYMON (South Australia).- - -I am afraid that we are going to make a fiasco of the Bill at the very outset. When I pointed out that the common law of England applies throughout the whole of the Commonwealth - that every State, . with every person therein, is covered and clothed with the common law of England, unless it has been altered by Statute - my honorable friend questioned that statement; but I think he now admits its truth.
– I say that the common law does not apply throughout the Commonwealth as one area.
– Are we to cut it up into bits? As the whole is made up of its different parts, I should say, without any refining or hair-splitting, that the common law applies throughout the whole.
– A man would have to take six remedies to get redress.
– That is procedure. I think every honorable senator, whether lawyer or layman, must understand the elementary principle that the common law applies throughout Australia, and that until it is altered we must abide by it. But now my honorable and learned friend says that an unpublished manuscript may be dealt with by any State under its ordinary law of property. Undoubtedly that is so. But an unpublished manuscript has nothing to do with the question of copyright. An unpublished manuscript of mine is just as much my property as my purse or penknife, or table, or chair. It only comes under the influence of copyright when it is published. This Bill defines what publication is, and provides that copyright shall only subsist from the time of publication. If that is the case, an unpublished manuscript is not subject to the law of copyright. My letter or manuscript is just at? much my property as any other article which belongs to me, and of course as a subject of legislation it is within the ambit of the States. The clause is objectionable as a blemish on the Bill, because it declares that to be the law by virtue of a Statute, which is the law by virtue of our being part of the British Dominions. If the Bill is to deal with unpublished manuscripts, and we are to pass a provision which is to apply throughout all the States, and to supersede the State law in relation to unpublished documents, we are doing something which we have not power to do. Our only power of legislation on this subject is as to copyrights. We have no power to enact that a document which belongs to me in South Australia shall or shall not be my property. The Commonwealth is not empowered to say that my unpublished literary work shall not be my property, or shall be dealt with by some other law than that of the State of which I am a citizen. If Senator Keating could show that the unpublished letters of a man are not his own property as much as are his goods and chattels, then there would be some force in that part of his argument. When we look at what our powers are, inasmuch as copyright only begins to operate on publication, everything antecedent to publication is private property. That point has been settled over and over again. In South Australia the other day an action was brought to restrain a sodawater manufacturer from using a recipe surreptitiously taken from a manuscript book by an employe of another soda-water manufacturer. An injunction was granted, and damages were awarded. An account had to be kept, and the former had to pay up the profits he had made, if they could be ascertained, on the ground that the manuscript book was the private property of its owner, just as much as his chairs and bottles, and that the copying of the recipe by his employe, and handing the copy over to another person, was literally theft. On the other hand, I can give an illustration of a case of copyright which is a totally different thing. The late Mr. Gladstone published1 a book which was called The Bulgarian Horrors, or the Question of the East. Instructed by Mr. Gladstone, I appeared in the Supreme Court of the State, and got an injunction against certain publishers in Adelaide, because the property of copyright attached to the book. We are. legislating as to one class, the authors of such books. We are not legislating, and have no power to legislate, as to the other class represented by the owner of the unpublished book containing the recipe for making sodawater. If we leave this clause in the Bill we shall go beyond our. power, if it is -for the purpose mentioned by Senator Keating. If, on the other hand, it is not for that purpose, we are asserting a position which is undoubted.
Senator KEATING (Tasmania- Honorary Minister). - So far from the clause being possibly a blot on our legislation, I would say to honorable senators that if it be omitted we shall have a very seriousgap in the Bill. I am well aware that, with regard to the question of the ownership and disposal of property, whether it be a table or a chair, or an unpublished literary manuscript, the States will still have the full measure of legislative jurisdiction which they have hitherto enjoyed. But once an. unpublished literary manuscript gets out of the hands of the author, he has a power to restrain the publication of it without his authority. But how must he exercise that power? If an author invoked the jurisdiction of a Victorian Court, and obtained an injunction to restrain the publication of his manuscript - and bear in mind that, under this Bill, the moment it is published a copyright will subsist in it for some one - the publisher might -go to another State, snap his fingers at the injunction, and publish the manuscript again. It would be necessary for the author tofollow him from State to State, and invoke the jurisdiction of a competent tribunal in each.
– Could he not go fo the Federal Court?
– The author and the publisher may be the citizens of one State. Senator Symon said that the common law of England operates throughout the Commonwealth. His argument was that the effect of an injunction in one State would be to restrain the person enjoined from publishing anywhere throughout the Commonwealth’.
– I never said so.
– The honorable and learned senator said that the common law of England applied throughout the Commonwealth as one area.
– The other is procedure ; not the common law.
– I said the common law of England does not apply throughout the Commonwealth as throughout one area, but if applies throughout the six different States.
– Surely the honorable and learned senator, as a lawyer, does not seriously state that proposition ?
– In the second edition of his Australian Constitutional Law, Mr. Justice Clark, at page 192, has this passage on the Constitution of the Commonwealth and the common law -
But as the supreme depositary of Executive authority in the Commonwealth, the Crown possesses prerogative rights and powers which nave their source in the common law. It is therefore evident that a portion of the common law attaches to the Constitution of the Commonwealth. But, except in relation to the Executive powers of the Crown, it is submitted that there cannot be any Federal common law in Australia, and that the Federal Courts of the Commonwealth will not possess any jurisdiction under the common law.
So that without this provision there would be no court of competent jurisdiction in Australia except State Courts to preserve to the author of an unpublished literary manuscript his common law rights against others imperilling his copyright, and the State Court could only give redress within its ambit.
– This clause will not give any more common- law jurisdiction to the High Court than it had before.
– So far as unpublished literary manuscripts may be affected by the law of copyright - and they may be affected by publication unauthorized!)’ - we provide in this clause that, subject to this or any other measure we may pass, the common law of England shall apply throughout the Commonwealth as one area. The common law in this detail is made the statute law ot the Commonwealth, and the Federal Courts will then have a Federal jurisdiction in relation to the rights which are perpetuated by the Bill, from which we prevent the different States hereafter from making divergence by their own legislation. If we leave the matter to the States it is quite possible that hereafter some of them might legislate so that persons starting off to acquire copyright by publishing previously unpublished manuscripts, would be on different levels.
– That would be only in case of publication.
– Copyright would only arise after publication. We want to make the present English common law Federal common law.
– We cannot do it.
– We can, and we are doing it by this Bill in such a way that the different States will not be able to legislate upon this particular branch of the subject in its relation to copyright.
– They could legislate in regard to unpublished manuscripts.
– I am not dealing with ownership, but with the question of publication. It is when a literary manuscript is first published that the law of copyright applies to it. It may be authorizedly, or unauthorizedly published. If it is unauthorizedly published, and we have no legislation of this kind, the person whose rights are infringed may have to seek the intervention of half-a-dozen different States Courts. We want to obviate the necessity of his having to hunt round from State to State after some one who has published his manuscript. We want to give our Federal Courts jurisdiction. But the Federal Court as a Federal Court cannot exercise any common law jurisdiction. The jurisdiction must be conferred upon it by the statutes of the Commonwealth. Much as my honorable friend Senator Symon may smile at the assertion,.! feel confident that if we do not insert this provision in the Bill, we shall be guilty of a very serious omission which might interfere with the rights of authors. We are providing, therefore, that whatever on this point exists in Great Britain’ as’ common law - and which exists so far as I know in each of the States separately - shall be statute law throughout the Commonwealth, and that our Federal Courts shall have jurisdiction in such matter as being a matter of Federal statute law.
Senator Sir JOSIAH SYMON (South’ Australia). - I will tell, the Committee in a sentence or two what the point is from which my honorable and learned friend Senator Keating, as I think, diverged very greatly. He says that it is necessary to pass this clause in order to give the Federal Courts jurisdiction. All that I can say is that he will not give the Federal Courts jurisdiction in any shape or form by this clause. If they had no jurisdiction before, they will have none after we have passed the clause. We are dealing with proprietary rights in Unpublished literary compositions. The term “ proprietary rights “ is simply a large expression for ownership. We mean the ownership of unpublished literary compositions just as we might refer to the ownership of goods and chattels or of tables and chairs. This clause says that the common law of England relating to proprietary rights in unpublished literary com- positions, shall apply throughout the Commonwealth. The common law which exists in Australia is the common law of England. That being the case, what is the power in Australia that deals with the ownership of private property? The States. That power has not been taken from them. They have power to tax unpublished literary manuscripts just as they have power to tax anything else. My honorable friend says that the object of this clause is to take that right right away from them. Suppose a State has passed an Act which says that the ownership of an unpublished manuscript shall be in some one else than the author. It has a perfect right to legislate m that manner. We have no power to take that right away. Our only power is to deal with copyright which affects publication authorized by the owner of the manuscript. If a manuscript is published without the authority of the owner, he does not lose his control over it. He has an absolute right to stop the publication; just as the person from whose private book a recipe was copied by some one who had no right to it, was enabled to obtain protection and damages. If this clause would assist authors in any way whatever, I should not say a word against it. But we have no power whatever to take away the right of a State to legislate with regard to an unpublished manuscript. The matter is beyond our jurisdiction. Anylawyer would agree that the common jaw of England affecting private property applies here unless altered by Statute.
Question - That the clause stand as printed - put. The Committee divided.
Majority … … 9
Question so resolved in the affirmative.
Clause agreed to.
Clause 8 -
The State Copyright Acts shall not apply to any book, dramatic or musical work, lecture, or artistic work in which copyright, performing right, or lecturing right, subsists under this Act.
Subject to Part 11 of this Act, nothing in this Act shall affect the application of the laws in force in any State at the commencement of this Act to any copyright or other right in relation to books or dramatic or musical works or lectures, or artistic or fine art works acquired under or protected by those laws before the commencement of this Act.
– Immediately this Bill becomes law the States laws, of course, will be superseded.
– So far as copyright is concerned, but some of the States laws deal with other matters also.
– Subject, of course, to the protection of existing secured rights. The intention of the first sub-clause is fairly plain- that is, it is to abrogate the effect of States Copyright Acts.
– The Constitution does that.
– It is not intended that the States Acts shall remain in force, or be administered, except in regard to rights that are safeguarded; but the language of sub-clause 1 of clause 8 might leave it to be inferred that the States Acts remain in force, though they shall not apply to any book as to which copyright subsists under this Bill. With a view to removing that objection, I move -
That sub-clause 1 be left out, with a view to insert in lieu thereof the following : - “ (1) After the passing of this Act no copyright shall be acquired, or be capable of being acquired, under or by virtue of any State Act.”
– I am not in a position to say that I can accept the amendment, even on the assurance that it will achieve exactly the same object as that which the subclause as it stands seeks to effect. When moving the second reading of the Bill, I particularly referred to clauses 8 and 12, and pointed out that some representations had been made by Mr. Anderson, of the Public Library, Sydney, to the Premier of New South Wales, to the effect that this Bill would in some way derogate from the rights of that State and that institution. In order that there should be no possible idea in the mind of any person that it is intended to override any rights which the States are entitled to enjoy, I announced that I intended to submit amendments in both the clauses that I have mentioned. Those amendments have been in circulation for some days; and I do not think that Senator Symon ought now to ask me to accept a new subclause, which none of us but himself and the .Clerk have seen. Senator Symon must surely realize that I cannot accept such an amendment at the table, but that I must have some time for consideration, and, possibly, consultation with those who have assisted me in drafting the Bill. What it is desired to effect will be properly effected by the sub-clause as it stands, together with the amendment of which I have given notice.
Senator Sir JOSIAH SYMON (South Australia). - I quite respond to what Senator Keating has said as to my calling on him to choose between the two. If the honorable senator does not see his way to accept the amendment, I shall not press it to a division. I took a division before on a very important clause, and the result guides me to the course I should adopt in regard to any other amendments. Much as I am anxious to assist the Minister, I should not be disposed to press amendments in a Bill of this kind, the responsibility for which’ rests entirely with the Government. My desire is to assist the Government; but if honorable senators think that because an amendment emanates from this side it ought to be immediately rejected, I shall not put them to the trouble to divide.
– I do not suggest that.
– Honorable senators opposite were, many of them, not present during the debate. I am willing to accept the situation, because the responsibility rests with the Government ; and those who sit behind the Government are perfectly entitled to vote in accordance with what .the Government desire, and to share that responsibility. However, Senator Keating will have an opportunity to consider the amendment that I have moved, the object of which is practically to give effect to the provision of the Constitution that this Bill, if it becomes law, shall supersede existing States legislation. The Constitution operates quite irrespective of any provision of this kind in the Bill, but it is a simple way of declaring that no copyright shall be acquired under any State Act after this Bill comes into operation.
– Would not this Bill effect that object without a clause of the kind?
– Yes. but it is just as well to have a declaration’ on the face of the measure. In substance this Bill was in existence under the auspicesof the late Government, though it had not then been revised. It is quite obvious that the words of the sub-clause as it stands imply that as to books, dramatic works, lectures, or artistic work, if there are any, in which copyright does not subsist under the Bill, the States Acts are still to remain in force. The sub-clause implies that there are some kinds of copyright or productions to which copyright may attach under a State Act after we have legislated.
– An author might have a choice.
– That might be so, and the sub-clause will tend relitigation if it be left obscure, as it is at present. What it is intended to declare is that no copyright shall be acquired under any State law after this Bill comes into operation. The amendment appears to me to be a great and distinct improvement, which will remove all obscurity and prevent possible litigation and doubt - certainly doubt, if not litigation. What we all desire to do is to revise and polish our Bills so as to make them perfectly clear.
– Will Senator Keating explain in what way a State Copyright Act could apply to any books, performing rights, lectures, or artistic work registered under this Bill ?
– The clause says, “subsists,” not “registered.”
– Both words mean practically the same tiling.
– There is a great deal of difference between a subsisting copyright and a copyright acquired by registration.
– Registration is merely evidence of the copyright.
– I agree with Senator Symon that the clause as it stands seems to create a degree of embarrassment” It indicates that some rights exist in regard to books, either registered under or governed by the Bill; and the fact that the Constitution itself provides that Commonwealth legislation shall prevail, increases the embarrassment. It is desirable that there should be some declaration in the form suggested by Senator Symon. I do not mean to say that a declaration is absolutely necessary, but if we are to have one, it ought to be of a definite character, and not the hybrid provision now presented.
Senator KEATING (Tasmania- Honorary Minister). - In reply to Senator Best, I point out that the sub-clause deals only with books, dramatic and musical works, lectures, and artistic work in which copyright “ subsists” under the Bill. The principle of the Bill is that copyright, lecturing right, performing right,. and other rights of that character subsist in every individual instance in which the publication, first performance, or first delivery’ has taken place in Australia, or when such first performance, or delivery and so forth, has taken placesimultaneously in Australia with the first performance or delivery elsewhere. The rights enure in those instances by virtue of the fact that the first performance or publication takes place here, and then the right “ subsists under this Act.” In such cases no registration is necessary. The only case in which it is necessary to register is where a man has so acquired a copyright or performing right, and wishes to sue; then he must register before he takes action.
– How can a State law apply ?
– A State law cannot apply.
– Does Senator Symon say that a Sfate law cannot apply?
– Certainly not to a Commonwealth copyright.
– Well, let us see. In some of the States Acts there is a simi- lar provision that copyright shall subsist, for instance, in a book first published in the State. That law is in force in those States at the present time, and we provide here in this Bill that copyright shall subsist throughout the Commonwealth in a book first published in Australia. The point might be raised whether, in the case of a copyright subsisting under a State law, prior to Federal legislation, by virtue of first publication in the State, the State law would continue to operate in regard to a book published in that State subsequently to the passing of the. Bill, as well as the Commonwealth law.
– That would be a most un desirable state of affairs.
– This Bill is an endeavour to provide against such a state of affairs.
– But the Bill only goes half-way.
– We are providing that States Copyrights Acts shall not apply to any book, dramatic work, and so forth, in which copyright “subsists under this Act.” It is provided that when a book is published in Australia, copyright subsists under this Bill, and then the States Copyright Acts that are in force now, and which, to some extent, may be in force hereafter in the particular State in which a book is first published, shall not operate to give any rights in that State in addition to the rights given by the Commonwealth legislation. I do not know yet the exact wording of the amendment suggested or how far it will meet the case.
– The honorable and learned senator will find that it meets the very, point to which he has been referring.
– I think that Ministers and honorable senators generally might have been given a better opportunity of considering an amendment of this character than is afforded by the procedure adopted. Senator Symon proposes to provide that -
After the passing of this Act no copyright shall be acquired, or be capable of being acquired, under or by virtue of any State Act.
In Tasmania, we have a Patents, Trade Marks, and’ Industrial Designs Act, and there is provision made in that Act for acquiring copyright in industrial designs. There is provfsion made in similar Acts in other States for acquiring copyright in industrial designs. In some of the States the main Copyright Act, apart from the State Patents Act, makes provision for a limited term of copyright in industrial designs; This Bill has no reference to industrial designs, therefore, if we pass this amendment we shall provide that, after the passing of this Bill, no copyright in designs shall be acquired or be capable of being acquired under or by virtue of any of those State Acts.
– The other words must be read into the amendment, of course.
– That is only one instance which occurs to my mind, and the amendment, if agreed to as it stands, would leave us with a Copyright Bill dealing with certain subjects, and would provide that hereafter no copyright could be acquired in industrial designs. If the amendment had been circulated earlier it is probable that other objections might have suggested themselves.
– Why_ not postpone the clause?
– We might have been given an opportunity for further consideration of the amendment.
– The honorable and learned’ senator will not take the opportunity.
– If the honorable and learned senator is very desirous of pressing his amendment, which, after all, Is one of form, and not of principle, and which the honorable and learned senator admits is intended to effect the same object which the clause purports to effect, and which, in my opinion, it does effect, I shall have no objection to postpone the consideration of the clause until after we have dealt with other clauses. It is obvious that the honorable and learned senator has overlooked the matter of industrial designs, and possibly there may be other objections to his amendment.
Clause 9 -
– I suggest that it might be well to give the Governor-General’ power to appoint one or more Deputy -Registrars of Copyright. It might be found desirable to appoint a Deputy-Registrar of Copyright in each State. I suggest that after the word “ appoint “ the words “ one or more “ should be inserted.
– I point out that the clause, as it stands, effects the honorable and learned senator’s object, because the Acts Interpretation Act provides that the singular shall be taken to denote the plural.
Senator Sir JOSIAH SYMON (South Australia). - I am obliged to the honorable and learned senator for referring me to that Act. The provision referred to merely implies that even where the singular was used in certain instances the GovernorGeneral might appoint several, and not that he could appoint one or more; that is to say, one -in one State and one in another.
– Surely Senator Keating does not mean to construe the Acts Interpretation Act so, as to suggest that a power given to appoint one officer involves a power given to appoint more. Would the honorable and learned senator say that a power to appoint a High Commissioner would be a power to appoint a dozen High Commissioners? I suggest that the commonsense reading of the provision is that where we confer the power to appoint one specified officer, that power cannot be exceeded. Senator Keating’s answer to Senator Symon shows that the honorable and learned senator has considered the matter, because he contends that the clause provides for the appointment of more than one deputy registrar. I have not much doubt myself as to whether it does, but if there is a doubt it is desirable that it should be made clear. I move -
That the word “ a,” line 2, be left out, with a view to insert in lieu thereof the words “ oneor more.”
– I think that Senator Keating will do well to accept the amendment. I do not read the Acts Interpretation Act as meaning that the singular denotes the plural in a case of this sort. Senator Millen has shown that the result of’ such a construction of the Act might be disastrous. I think that Senator Keating will have some difficulty in showing that in this instan’ce the singular denotes the plural.
Senator KEATING (Tasmania- Honorary Minister). - I think the clause as it stands provides for what Senator Symon’ desires. It provides that the GovernorGeneral may appoint a deputy registrar, and I think that includes more than onedeputy registrar if the appointment of more than one is found to be desirable. With regard to the suggestion made by Senators Millen and Dobson that this interpretation would lead to very undesirable results, I point out that the Acts Interpretation Act provides that -
In any Act, unless the contrary intention appears, words in the singular shall include the plural.
If we are to pass a High Commissioner Bill I can- assure honorable senators that if the Bill is brought down by the present Government the contrary intention will very clearly appear in it.
– So it does in this Bill. “A” means “one.”
– “A” is singular, and “one” is singular.
– Could the GovernorGeneral appoint more than one registrar?
– He might, unless the contrary intention appears in the Bill. The Bill provides that there shall be a deputy-registrar of copyrights, and I contend that the Governor-General might appoint a deputy-registrar of copyrights in each State. However, I have no objection to the amendment, though I think the clause as it stands is clear enough.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 10 (Copyright Office).
– As I have been somewhat alarmed by the Minister’s statement as to the wide powers which may probably be given under the previous clause by a certain reading of the Acts Interpretation Act, I should like to have the honorable and learned senator’s assurance that the singular is not intended to denote the plural here, and that we shall have but one Commonwealth Copyright Office, and not several.
– I think the intention is clearly indicated in this clause.
Clause agreed to.
Clause 11 agreed to.
Clause 12 -
The Governor-General may, by proclamation, declare that, from and after a date specified in the proclamation, the administration of the State Copyright Acts of any State shall be transferred to the Commonwealth and thereupon -
the State Copyright Acts of the State shall, so far as they have any relation to copyrights, cease to be administered by the State, and shall thereafter be administered by the Commonwealth so far as is necessary for the purpose of completing then pending proceedings and of giving effect to then existing rights, and the Registrar shall collect for the State all fees which become payable thereunder ; and
– I move in accordance with notice -
That after the words “of any State,” line 4, the following words be inserted - “ so far as they relate to the registration of the copyright in any book, the performing right in any musical or dramatic work, the lecturing right in any lecture, and the copyright in any artistic or fine art work”, or to the registration of any assignment or grant of, or licence in relation to, any such right.”
The object of the amendment is to make it abundantly clear that we only endeavour to transfer the administration of States
Copyright Acts in so far as they relate, to the subject of copyright, performingright, lecturing right, and the registration or assignment, or the licensing of any such right. Honorable senators will remember that previously I made reference to some criticisms levelled at the Bill by the Librarian of the Sydney Public Library. The Copyright. Act of New South Wales provides, amongst: other things, that a copy of every publication issued in the State shall be supplied to that institution, and also, I believe, to the Sydney University. In conformity with that provision, the former is supplied’ with about 340 newspapers, and is thereby enabled to keep records which hereafter may be of very great value and interest. I do not know that the Bill as it stands would in any way interfere with the right; of the institution to get these publications, because our legislation would not be inconsistent with, or repugnant to, the State law upon the point. But if it were, it would still be competent for the State Parliament, apart from the question of copyright, to require the publishers of a work in New South Wales to supply a copy thereof to certain institutions. But in order that it might be made abundantly clear on the face of this Bill that it was not intended to interfere with such existing rights, I gave notice of my intention to move certain amendments in this clause. I may mention again that, this matter was first brought under my notice by the Librarian of the Melbourne Public Library. He has seen these amendments, and thinks that, so far as that institution is concerned, they are eminentlysatisfactory, and meet the case.
– Can he justify the levying of this tribute on authors and publishers ?
– This tribute, if the expression may be used, is levied, not as a condition precedent to the acquisition of copyright, but pursuant to the legislation of the State. The provision happens to be contained in its Copyright Act. I donot think that all the publications of which these libraries get copies are copyrighted. If this measure be passed, we could not prevent a State from imposing upon a printer or publisher within its jurisdiction the necessity of providing certain institutions with a copy of his publications. It is provided in clause 74 of this Bill that any applicant for the registration of the copyright in a book shall deliver to theRegistrar two copies of it - one to be- forwarded by him to the Librarian of the Commonwealth Parliament, and the other to be retained by him until otherwise prescribed. At the present time, in order to get copyright in Victoria, New South Wales) and Western Australia, an applicant has to deposit one book or more in each State. I cannot say from memory exactly how many books have to be deposited in order to get copyright in the United Kingdom ; but not very long ago as many as eleven or twelve libraries, including the British Museum and certain Universities, had to be supplied with from five to nine copies each.
– I had anticipated that the Minister would have ventured to justify the idea of levying tribute upon . those who may seek to get the benefit of this measure.
– Yes, but we do not wish to interfere with a State Act.
– There is no particular compulsion upon us to affirm that we approve of the provision in the State Act, or wish to continue it.
– We do not wish to take the right away from the States.
– The Minister wishes to continue the right to the States.
– No. I do not think if we passed the Bill as it stands we should deprive the States of it. I said that this amendment was only introduced for the sake of more abundant certainty.
– I entirely differ from the honorable and learned senator. It seems to me to approach . the height of meanness to attempt to levy this tribute upon the authors of books or publishers of newspapers. In a circular, which he has addressed to honorable senators, Mr. Anderson, of the Sydney Public Library, has pointed out that these newspapers and other documents become valuable. If they become valuable, let the public who use the institution pay for them. I can quite understand any one arguing that, inasmuch as a Copyright Act would confer a considerable advantage upon an author, therefore he might reasonably be asked to pay for it. Let us openly charge an author a fee for the benefit we propose to confer upon him. But after ‘We have granted copyright to a man, do not let us turn round and insist upon him contributing to an institution a copy of his book, or of his newspaper. This appears to me vo be a species of loafing. I cannot conceive that in private business we would attempt to justify such a proceeding. It is a little worse than a secret commission, because we are taking something by arbitrary authority, which I do not think we can justify. Let me point out. how unfairly this tribute is imposed. Let us compare the case of a man who has published a remarkably valuable book with the case of a man who has published a book which can be purchased for sixpence. Here the tribute is not equitably levied. If a contribution is to be exacted from an author, as a return for the protection he gets, let it be exacted in proportion to the value of his work. This tribute must be a heavy tax upon an author who has published a limited number of copies of an expensive book. Where a man has published a sixpenny edition of a work he is really not taxed when he is asked to supply a copy to certain institutions. For that reason, I am extremely disappointed that the Minister has not made it clear to me, if he has to others, that there is some justice underlying the law which is said to exist in New South Wales, and which I affirm he is seeking to perpetuate.
– I am compelled to disagree somewhat with the remarks made by Senator Millen. I must have a little sympathy with Senator Keating for having brought in amendments specially to oblige the Librarian of the Sydney Public Library. The Premier of New South Wales has sent to all the members of the Senate, I believe, certainly to all the senators from that. State, a statement on the subject. Therefore, it seemed to me that it did not require very much explanation when the Minister did not elaborate his reasons for agreeing to the amendments suggested. It is said bv Mr. Anderson that 340 newspapers are published in New South Wales, and that a copy of each newspaper, free of cost, is deposited week by. week with the Sydnev Public Library. The cost to the newspaper publishers is as near nothing as possible, because the postage rate amounts to about id. per dozen. Every newspaper has a number of advertising clients in the metropolis, and has to send down a bundle of newspapers, so that the postage is really trifling. It would be a tax, however, if the Sydney Public Library were called upon to subscribe for a copy of each one of these newspapers. If it was called upon to make a special contribution the trustees would have to consider whether, after all, it was worth while to spend£500 or £600 a year for the sake of completing these files. I very much doubt that it would be. But as the newspapers can be obtained at the very minimum of expense to the printers, and will be available for reference in coming years, we should maintain the existing right)? of the Public Library. I think that the Minister has only done what is right in recognising the representations of its librarian. Therefore, I trust that Senator Millen will see his way to withdraw his objection.
– I am very pleased that Senator Pulsford has spoken as he has done. [ regret that Senator Millen does not see that, in some cases, it is a decided advantage to an author that his work can be consulted in the Public Library at Sydney or Melbourne, and that it may thereby gain public appreciation. Unfortunately, there is a great feeling abroad in Sydney that the Federal Parliament, somehow or other, is unnecessarily treading upon the toes of the State. In this case, we would do well, I think, to refrain from accentuating that feeling..
– To please Mr. Anderson ?
– No, to please the people of New South Wales. My honorable friend is at liberty to go to the Sydney Public Library, and see all these books and newspapers. The Premier of New South Wales has spoken on behalf of the State, and its representatives, as loyal New South Welshmen, ought, I think, to support him.
– It is with very mingled feelings of pain and pleasure that I find myself in the position of being obliged to support the views of Senator Millen. Whilst I quite sympathize with what Senator Walker has said about the undesirability of this Parliament treading upon the toes of the States, I do not like to see the States treading upon the toes of authors in this very indiscriminate and severe fashion. My honorable friend, Senator Millen, alluded to this practice as loafing. I call it a very undesirable form of blackmail. The Government have apparently yielded to the representations of Mr. Anderson, of Sydney, that these libraries should get publications on .the cheap. If public libraries are to have copies of all works published, and if the object be to help an author to gain public appreciation, why not private libraries also?
– That is the only way in which some authors could get their books read !
– What we are asked to do i’s to give legislative recognition by the Commonwealth to a practice which it is perhaps quite true the States may be able to enforce in some other way; but the odium ought to be placed upon the States of enforcing a tax of this character on literature. We already insure that an author on securing copyright shall present two copies of his work, one of which goes to the Library of the Federal Parliament. That is a proper thing, because it is a record of the copyright. But it is very different to impose a tax of this kind upon authors, independently of copyright. I do not believe that any State Parliament would consent to pass a law imposing such a tax upon authors. There is no more reason why New South Wales should have two or more copies of a book published in that State than that any other library in the Commonwealth should be similarly treated; except that these people have been getting their books for nothing in the past, and want to get them for nothing in the future. It will be observed that the requirement is that not only shall the author be compelled to present his book in the ordinary binding, just as it may be sold in any shop ; he has to present copies “ printed upon the best paper upon which the same shall be printed.” In these days there are editions de luxe of many books. Copies are printed on hand -made paper. These people wish to exact the finest library copies of an unfortunate author’s book. If he happens to print for circulation among his friends a. few copies at a higher price than the ordinary copies, he has to present one of the special copies to the New South Wales library. It may be worth 8 or 10 guineas.
– Would the author have to present copies in each State in which there was copyright?
– No; the moment the. copyright law of the Commonwealth comes into forGe there is no longer any State copyright. Publication in New South Wales is publication in the Commonwealth. But these people in New South Wales want to retain the right of exacting copies of books published in that State for their libraries.
– We have a similar provision in Western Australia ; will not an author have to give a copy of his book to the library there?
– He will have to give copies such as he is directed to give under this Bill, just as in England to secure copyright copies of a book have to be handed to certain libraries. To compel authors to give copies to State libraries,’ as proposed, is simply a pure, unadulterated piece of literary blackmail. I suggest the withdrawal of the amendment, because if the clause is sufficient without it there is no need for it. If the Parliament of New South Wales favours this nefarious proceeding, and chooses to exact a direct tax, let it have the odium of doing so. But we should set our faces against such a system. These great libraries should pay for their books if they want them, and are not entitled to get any help at our hands.
Senator PULSFORD (New SouthWales). - I should like to point out that for one book published in an expensive form such as we have heard about, there are other books by the hundred, and there are newspapers by the thousand. That is the main point. I recently published a little pamphlet, and within the last, few days, have had a few copies bound with strong “backs especially to present them to three or four libraries. I gave one to the Public Library in Sydney, and another to the Parliamentary Library here. I am glad at any time for these public libraries to have copies of anything that I bring out. I do not think that Senator Symon himself, if he published anything, would be other than delighted to present copies to the leading “.libraries.
– I always do; but let it be done voluntarily.
– I say again that for one costly book there are thousands of newspapers and other publications. The intention is principally to obtain copies of newspapers.
– Is it less a tax because it is small ?
– It is scarcely worth calling a tax and it is a fair and reasonable thing to do.
– I share the view taken by Senator Millen and Senator Symon. It is not part of the duty -of this Parliament to give facilities for any State Government to do what is unfair and unjust.
– It is not the duty of the Senate to abridge State rights.
– We are not proposing to abridge State rights in any way. The people, of the Commonwealth gave us power to legislate with regard to copyright, and I take it that they did not expect us to have special regard to the desires of the libraries of any State. In my opinion, an author should not be subjected to a tax simply because he has to take advantage of the law of the land to define and protect his rights. Why should we with the one hand give an author the protection of copyright so as to protect the products of his own brain, whilst at the same time we compel him to contribute a portion of his property to some person or State? It does not matter whether the publication is worth a penny or a thousands pounds. It is a question of principle. I would also point out that this Bill affects works of art. Must an artist who reproduces a work of art be compelled to give copies to several State institutions? I am strongly in favour of the establishment qf public libraries in every town where there is a reasonable population. But these public libraries should be supported at the public expense, and not at the expense of authors. It is a mere matter of loafing on authors to compel them to contribute copies of their works to Government institutions. One of the most popular Australian authors to-day is at present in financial difficulties. Yet not one of these great public institutions would do a thing to help him, although they have lived upon his brains. By their means his best works have been read by thousands of people, many of whom, if they could not have read them in a free library, would have purchased them. Of course, if the management of a public institution purchase their copies of books, they are entitled to use them as they please, and an author cannot complain that his works are read for’ nothing by the public. But a public institution is entitled to pay for the books which’ it acquires, and we should not compel authors to give away works which are’ the product of their brains, energy, industry, and enterprise.
Senator KEATING (Tasmania- Honorary Minister). - I cannot see my way to accept the suggestion to withdraw the amendment which, as I indicated before, was drawn up soon after the Bill was circulated, and’ after representations had been made to me, but before the instance of the
New South Wales institutions had been brought under my notice. It seems to me that honorable senators misconceive the situation. We are not endeavouring, by this amendment, to impose any tax on authors. As the Bill stood originally, I did not think that it would’ deprive public institutions Of the right to receive the copies referred to in the clause ; but in order that there might be no doubt, this amendment has been submitted. Senator Symon referred to the New South Wales Copyright Act, and spoke in harsh terms of what he seemed to regard as a nefarious proceeding.
– Is it not a nefarious proceeding if carried on, apart from copy-
– There is a provision, almost word for word with this, in the South Australian Copyright Act of 1878, except that it provides that a copy shall be lodged at the South Australia Institute, and, in Western Australia, copies of books and newspapers published in that State have to be sent to the Victoria Public Library in Perth. Then, again, in Victoria, copies of every newspaper or book first printed in that State must be sent to the Public Library, and, perhaps, to other institutions. Honorable senators may be under the impression that if the amendment be carried a man who publishes a book in Australia, will, in order to obtain copyright, have to deposit two copies with the Registrar of Copyrights, and also two copies in each State, as required by the law of each State; but that is not so. The fact is that if a book, for example, be first published in South Australia, two copies will have to be furnished to the Commonwealth Registrar, and a copy to the South Australia Institute, according to the present law of that State.
– But supposing there is simultaneous publication in each State?
– That is not a question for us.
– The Minister is making it a question for us by this amendment.
– If the South Australia Institute claims a copy of a book on the ground that it is published in that State, and it is objected that the book has been simultaneously published elsewhere, that will be a matter for the two parties to settle under the South Australian State law.
– Then why the amendment?
– My amendment will not interfere with the State law in that regard.
– Why submit the amendment if it is not necessary ?
– I have already explained why I decided to submit the amendment.
– The Minister is raising a hornet’s nest about himself.
– I agree with Senator Pulsford that there has been much exaggeration as to the imposition1 of a “ tax,” or the levying of “ blackmail,” and so forth. Under ordinary circumstances, authors are quite prepared to give some such publicity to each of their works. The amendment will mean, in the case of New South Wales, for example, the deposit of an extra two copies, namely, those required for the Registrar under the Bill. In the case of Western Australia, or South Australia, it will only mean an additional copy that will have to be supplied. There are 340 newspapers printed in New South Wales, which are sent to the Sydney Public Library, and such newspapers have been deposited ever since the State law was put in force. These newspapers form a regular and uninterrupted record of great value; indeed, they are the only record available now for the community of New South Wales in regard to certain matters. The same may be said, I believe, of Victoria. It is desirable that there shall be in each of the States a permanent and continuous collection of records of this character; and it must be remembered that this Bill does not provide that newspapers published in any State shall be deposited with .the Registrar. In Western Australia, every newspaper published in that State has been filed at the Victoria Library, in Perth, since the Copyright Act was passed ; and, as I have pointed out, the same policy has been carried out in New South Wales, Victoria, South Australia, and, doubtless, in Queensland. In Tasmania there is no provision of the kind, but a copy of every newspaper published in the State must be sent to the Chief Secretary, who keeps the records.
– What has the Chief Secretary done that he should be penalized in that way?
– I do not know that the Chief Secretary has done anything that he should be penalized. I was told just now by the honorable and learned senator that it was the author who was penalized, though now I am given to understand that it is the recipient. The main object is to preserve the records unbroken.
– At the expense of authors and publishers.
– I do not think that Senator Givens can point to a single instance in any of the States where a publisher or author has raised a whisper of a protest.
– But under the States laws authors and publishers get copyright in exchange.
– This is a matter altogether apart from the question of copyright.
– If no copyright is given in return, say, in New South Wales, this amendment will levy a tax on an author for doing that State the honour of publishing his book there.
– I venture to suggest, with all respect, that if those authors and publishers, who are described as being penalized, could hear this debate, they would desire to.be saved from their friends. After all, once a work is in print, an extra copy one way or the other matters very little; and these contributions of publications are desirable in the interests of the community. The cost is infinitesimal to the individual, while the results are most; valuable to the people at large ; and we should do well to let matters stand as at present. No heavy burden is imposed, and each State is provided with records which will prove of great value hereafter.
– I cannot appreciate the standard of morality which assumes that an injustice, because it is “ only a little one,” is in principle less wrong than a big injustice. I have waited for some defence of this amendment, but neither from Senator Pulsford, Senator Walker, nor the Minister have I heard one word to justif y the morality of the proposal. Senator Pulsford merely said, as Senator Keating does now, that the charge on those who are compelled to contribute, is infinitesimal. Does that affect the principle ? The question is whether this amendment can be justified on the grounds of commercial or any other morality ? The second point raised by Senator Keating is that this is the existing law in the several States. But the Minister, if he did not forget - and I can hardly assume he forgot. - at any rate omitted to point out that when authors and publishers are required to present ‘ copies to public institutions in New South Wales and elsewhere they do so in connexion with the copyrights granted by the several States. The deposit of those copies is incidental to the application for copyright; but in the future a Commonwealth law will secure them that privilege, and while the Bill very properly requires that a couple of copies shall be deposited with the Registrar, I see absolutely no reason why we should continue to enable the States Governments, who will cease to have any power over copyright, to continue to levy this toll on authors and publishers.
– The States have the power to inflict a tax on knowledge if thev think fit.
– Then let the States do so directly. I have no desire to pass any law interfering with States rights; indeed, I always fancy myself as being rather stalwart in the defence of States rights. The effect of the amendment is to perpetuate a practice which, in my belief, cannot be justified. Let me put a parallel case to honorable senators. Would honorable senators entertain for a moment a proposition that, in connexion with applications for patents, a duplicate or model of every invention should be lodged at the Patent Office and the technical school in the State in which the application was made ? Would any honorable senator attempt to justify a proposal of that kind? If we were now initiating copyright legislation, would any honorable senator) defend a proposal to give, the States the right to demand that every work published should be deposited at’ local institutions? The only reason for the amendment is, as Senator Walker has said, that it represents the State law as at present carried out. Although it is my own State that has moved in this matter, I cannot allow my regard for the interests of that State to compel’ me to do violence to my sense of what isequitable and just.
– I had no intention to speak again but Senator Millen’s remarks have compelled me to do so. The honorable senator speaks of the immorality and the in- justice of the proposal. I believe that it is in the interests of the State> that it is just, and that it is thoroughly moral, if the question of morals can enter into the subject at all. In every civilized State strong views are held with regard to the regulation of literary matters. Almost every State does its test to get together as complete a collection of its own literature as it can. This is done in New South Wales and in other States of Australia, and we know that in America and in Great Britain every effort is made to make as complete a collection as possible of the literature of the country. We should hesitate before we do anything to withdraw this right.
– We are not seeking to withdraw it. If it be a right we would continue it.
– The honorable and learned senator is doing his best to prevent this being done, and he impugns even the honesty of the proposal.
– What we say is, “ Do not perpetuate an iniquity.”
– My object in rising is to show that there is no iniquity other thani that which exists in the minds of Senators Symon and Millen. With regard to the matter of cost, Mr. Anderson ^estimates that if the newspapers filed in the New South Wales library had to be paid for, the expenditure would run into between ^500 and £600 a year. I have no doubt that these newspapers do not cost the people who send them to the library as much as £50 per year. I know something of the cost of producing newspapers, and the cost of a single copy of a newspaper is not worth talking about. But if the States Governments were to be called upon to subscribe to every newspaper published in the Commonwealth, it would mean throughOUt Australia an addition to States taxation of something like .£2,000 a year. , We are not called upon to take any step which will add that amount to the taxation of the people of the States.
– I remember that at one time when I was working on a new gold-field, . a mare of mine cast a foal. That foal grew up to be a very fine colt, for which I got a handsome price. The colt did not cost me a farthing, and, therefore, according to Senator Pulsford, I should have given him to the public. That is the honorable senator’s argument. He says that as newspapers do not cost their proprietors very much, they should make a present of them to all and sundry.
– I did not say all and sundry. I said to the principal library of each State.
– If it is right and equitable that they should be compelled to do that, they should also be compelled to present copies of their newspapers to every library in each State. I have been a publisher of a newspaper myself, and I know that this provision has often caused me inconvenience and trouble, which I would not willingly have undertaken for a couple of pounds. Senator Pulsford’ has said1 on the authority’ of Mr. Anderson, of the Public Library of New South Wales, that the newspapers which that institution is enabled to exact from proprietors amount in value to from £500 to £600 a year. What right have the public of New South Wales to demand that the proprietors of newspapers shall contribute property of that value to ona particular institution? New South Wales is a very extensive State, and the people of many important towns throughout the State derive no benefit from the Public Library in Sydney, and many of them very rarely ever see it. Why should the newspaper proprietors throughout that State be penalized for the benefit of a Public Library in one corner of it? I point out that the publication of many country newspapers does not pay as a purely commercial enterprise, and the proprietors of country newspapers have often a hard struggle to make a living. Why should they be subjected to this tax for the benefit of a particular public institution. I agree with Senator Pulsford that it is exceedingly desirable that in all the States every provision should’ be made for a complete eel lection of the” newspapers and books published1 in those States, but it should be done at the public expense, and not at the expense of the unfortunate authors and proprietors. If this is done for the benefit of the public, they should bear the burden and should not loaf on newspaper proprietors and authors.
– There are dozens of country newspapers that are merely struggling to continue publication.
– Many of them are enterprises in which public-spirited men have been sinking money for years.
-They are pleased to have their newspapers kept in the Public Library.
– If they are, why should we hold a pistol to their heads and compel them to send copies of their newspapers to a library when, if it pleases them to do so, they will do so voluntarily ?
– The fact that they will not do so is shown by Mr. Anderson’s fear of the consequences if this provision is not enacted.
– Of course he fears that it will cost his library£500 or£600 a year. I hope that honorable senators will in this matter do what is fair, and will be guided by what, after all, is only common honesty.
SenatorSTEWART (Queensland). - I find great difficulty in making up my mind on this question. Listening to the inflammatory language of Senator Symon, who talked of holding a pistol to people’s heads, I was filled with zeal to support the honorable and learned senator’s contention, but listening later on to the cool, calm, and reasonable language of Senator Pulsford, I came to the conclusion that probably there might be something in the idea of keeping a permanent record in some safe place of all the newspapers and books published in each State. After more mature consideration I really think that there is something in that idea. Of course we cannot have a complete record of this kind in every town in each State, and the capital city of each State is the most convenient place in which to keep such a record. Copies of the newspapers and books published every year in the States might not be of any great value from our point of view, but when a hundred years hence the history of Australia comes to be written, probably by some descendant of Senator Symon or of Senator Smith - if the taste for history is at all hereditary - these records will be found to be most valuable. After hearing the argument, I am inclined to support the amendment.
Question. - That the words proposed to be inserted be so inserted - put. The Committee divided.
Majority … … . 5
Question so resolved in the affirmative.
Amendment agreed to.
Amendment (by Senator Keating) agreed to-
That after the word “ thereupon,” line 5, the following words be inserted - “ so far as is necessary for the purposes of this section.”
Amendment (by Senator Keating) proposed -
That the following words be left out - “sofar as they have any relation to copyrights,” lines 7 and 8.
– I think a little explanation from Senator Keating is desirable. The provision as it stands is that -
The State Copyright Acts of the State shall, so far as they have any relation to copyrights, cease to be administered by the State, and shall thereafter be administered by the Commonwealth.
But we have inserted after the word “ thereupon “ the words - so far as is necessary for the purposes of this section.
Why does he not retain the words “ so, far as they have any relation to copyrights” ?
– Because just before the suspension for dinner, we put the provision’ in the governing, part of the clause.
– We shall have a very clumsy section if this amendment is made; but we can see theclause when it is reprinted.
Senator KEATING (Tasmania- Honorary Minister). - Just before the sitting was suspended for dinner, we inserted, after the word “ State,” in the governing part of the clause, that is, before paragraph a, the words - so far as they relate to the registration of the copyright in any book, the performing right in any musical or dramatic work, the lecturing right in any lecture, and the copyright in any artistic or fine art work, or to the registration of any assignment or grant of, or licence in relation to, any such right.
The insertion of those words, in the first part of the clause, makes it unnecessary for us to put in paragraph a or paragraph b anything which would be a repetition of that amendment or part thereof. This amendment will materially shorten the clause.
Amendment agreed to.
Senator KEATING (Tasmania - Honorary Minister). - In accordance with notice, I move -
That the following words, lines 10 to 14, be left out - “ so far as is necessary for the purpose of completing then pending proceedings and of giving effect to then existing rights.”
This also is one of the four amendments of which I gave notice last week, in the one paper, and which are all to effect the same object that we have in view, namely, that the Bill shall only apply so far as it comes in conflict with any of the State laws.
Senator Sir JOSIAH SYMON (South Australia). - I think that greater consideration ought to be given to this amendment. We are asked to omit words which we ought to preserve. The administration of the States Acts will cease, so far as they give anybody copyright the moment this Bill comes into operation ; but all existing rights will remain, and for the purpose of effectuating those rights, the administration of the States Acts must be in the hands of the Commonwealth. I cannot understand how the omission of these words is dependent upon the words which were inserted just before the suspension for dinner. All we did in inserting the first amendment was to say that the GovernorGeneral in Council may, by proclamation, declare that on a certain date, the administration of the Copyrights Acts of any State, so far as they relate to registration, shall be transferred to the Commonwealth, but there is nothing in that amendment referring to existing rights, which are to be preserved. I think Senator Keating will see that the only words to preserve existing rights are those which he now proposes to strike out. I suppose there are hundreds of copyrights in operation under States Acts, but these will not be preserved if the present amendment be agreed to.
Senator KEATING (Tasmania - Honorary Minister). - I think that the words I seek to have omitted do not depend upon the previous amendment. I notice that in section 19, the Patents Act of 1903 pro vides that on a date to be specified by proclamation -
The State Patents Acts of the State referred to shall, so far as they have any relation to patents, cease to be administered by the State, and the Commonwealth shall thereafter administer the same so far as is necessary for the purpose of completing then pending proceedings and of giving effect to then existing rights.
I think that the words to which Senator Symon has called my attention may be allowed to remain in the clause.
Amendment, by leave, withdrawn.
Clause, as amended, agreed to.
Clause 13 -
– The first sub-clause is a very good and complete one, but obviously the words “ before or “ in sub-clause 2, are unnecessary, because, if a work is “ first published in Australia,” that must be before publication elsewhere.
– Does the honorable and learned senator mean that we should leave out the word “ before “ ?
– No.1 have a suggestion to make, which, I think, will make the clause more artistic and read very much better. What has to be provided for is the simultaneous publication. Therefore, I move -
That after the word “Australia,” line 4, the following words be inserted - “ or of which the first publication in Australia is simultaneous with first publication elsewhere.”
In clause 5, we have a definition of “ simultaneous,” which would apply to the next two clauses as well as to this clause. In that clause, the word “ simultaneously “ is not used, and it is better to adhere to the use of the word “simultaneous” in order to prevent litigation.
– At first, I was inclined to think that the insertion of these words would do no harm, and might give an artistic finish to the clause, but now I think they would be dangerous. We should be using the word “ published “ in the first part of the clause, and the words “first publication” in the amendment.
– Those words are defined in clause 5.
– The words “before or “ must remain in, because first publication^ in Australia means that the work has first been published in Australia itself. The words “been first published in Australia “ do not mean “ absolutely published for the first time in Australia,” but they mean “ the first publication of which in Australia “ shall be before or simultaneously with first publication elsewhere.
Senator Sir JOSIAH SYMON (South Australia).- I think that my honorable and learned friend is mistaken. “ First published in Australia” means first published here of all places of the world; because the Bill afterwards says that when a work is simultaneously published here it shall be entitled to copyright. Clause 5 says -
For the purpose of this Act, publication, performance, or delivery in the Commonwealth shall be deemed to be simultaneous with publication, performance, or delivery elsewhere, if the period between the publications, performances, or deliveries does not exceed fourteen days.
That is to say, when a work is first performed in’ Australia, in comparison with any. other part of the British dominions, that gives a right to copyright in Australia. Of course, there can be no copyright in Australia in conflict with copyright in Great Britain. If a work is first published in England, copyright in Australia has gone, except by virtue of the Imperial law, which confers the privilege of copyright in the British dominions because of publication in England.
– Does the English copyright law extend to all parts of the British dominions ?
– Undoubtedly. If there were no State copyright law, and we did not pass this Bill, copyright in Australia would apply to works first published in England. There are two kinds of copyright conferred by this Bill. When a book is published here before it has been published anywhere else, that gives copyright. But publication in Australia, which is not first in point of time, but which is simultaneous - that is to say, when the book is published here within fourteen days of publication elsewhere - also gives copyright. Consequently, what we have to do is to provide for two things - first, copyright for a book first published in Australia; and, secondly, copyright for a book published here simultaneously with publication elsewhere. The amendment which I have moved is to provide that a work which has been first published in Australia, . or of which the first publication in Australia is simultaneous with publication elsewhere, shall have copyright. By way of illustration, take clauses 14 and 15. Take a lecturing right. It subsists in every lecture whichhas “ been first delivered in public in Australia;” and that means clearly the first delivery of that lecture in public here, or simultaneously with its first delivery in. public elsewhere. Unless this amendment is carried, we shall first of all introduce a limitation on “ first publication “ by saying that it means “ before publication elsewhere.” If that means anything, it emphasizes what I have said about first publication being in reference to the. whole of the British dominions. Or, if we say that it means “ simultaneously with publicationelsewhere,” we are departing from the language used in clause 15. I think the clauses of this Bill should be as connected” and as harmonious as possible.
– If Senator Keating’s interpretation of this clause is correct, some curious results arelikely to follow. I understand him to say that, as he Interprets the words “first published in Australia,” they mean that a book may have been published anywhereelse, or in a “dozen other countries, but onits being first published in Australia it secures copyright. Does he mean to saythat I can bring out Milton’s Paradise Lost’ in Australia and copyright it because it isthen published here for the first time?
– Certainly not.
– If the words “ first published in Australia” mean - as I thinkthey do - the first time a work has been published anywhere, that is intelligible. Thepurpose of this clause is to lay down theconditions under which copyright accrues,, and it is clear that it is intended to mean that when a work makes its first appearance in Australia copyright accrues. Senator Keating, however, says that that is notmeant - that the work may have been published in America, or in France, or inGermany, or in fifty other countries, but that the moment it is published here for thefirst time it secures copyright.
– No; if the first publication here is before or simultaneous withpublication elsewhere.
– Then either thewording of the clause is wrong, or Senator Keating’s interpretation is wrong. I understand him to say that first publication in Australia means the first publication of
– Then I really cannot understand the honorable senator. I wish to know whether or not the clause is intended to mean that a work can be published elsewhere, but that the moment it is published here it can secure copyright. I do not wish to delay the Bill, but it is one thing to expedite legislation, and quite another thing to make ourselves ridiculous, not only in the eyes of the public, but in our own eyes. It seems to me that we have had two meanings from the Minister in charge of the Bill. One is that “first publication in Australia” means that the first publication of a particular work is made here, although it may previously have been published elsewhere. If that be so, the words “ before or simultaneously with its first publication elsewhere ‘ ‘ become a rank absurdity. On the other hand, if Senator Keating’s other interpretation be correct, the words “before or simultaneously with “ kill the first portion of the clause. One or the other interpretation is ridiculous.
Senator KEATING (Tasmania- Honorary Minister). - I will endeavour to give a concrete instance. The next two clauses refer to performing rights and lecturing rights. They are all framed on the same principle - that first publication, first performance, and first delivery in Australia, either prior to or simultaneously with first publication, first performance, or first delivery elsewhere, will enable copyright to subsist. It is as well to remember that copyright under this measure may be obtained in two ways. First, the person who is entitled to copyright), by virtue of first publication here, has all the advantages and privileges of this measure conferred upon him. These are over and above any advantages or privileges or facilities that may be conferred upon anotherby virtue of international or Imperial copyright, which privileges do not subsist under this Bill itself, but perhaps under some Imperial enactment. These latter may be registered here for their original value. I will take as an illustration the case of the performing right of some play. We will say that a drama is written in England or in America, and is called
Upper Life. Suppose that that drama is first produced in London on the 1st March of this year, and is first produced in Australia on the 1 st September of this year. Obviously its first production in Australia is after its first production elsewhere, and there is no copyright here. But suppose that it is first produced in London on the 1st August, and is first produced in Australia on the 1st August, or within fourteen days after. That is first production in Australia, not before, but simultaneously, because the Bill provides that a period of fourteen days is to be regarded as simultaneous with first production elsewhere. The words of the clause are perfectly correct. They say that copyright shall subsist in a book which has been first published in Australia - not which is absolutely first published as a book, but which has been first published in Australia, either before or simultaneously with its first publication elsewhere. What is wrong with that?
– Because its first publication in Australia must be necessary before publication elsewhere.
– The honorable senator may any day see announcements that a drama will be “ first produced in Australia on Saturday next,” though that drama may have been produced elsewhere two years before.
– But does that publication give copyright?
– No; I am speaking of what is ordinarily understood by the public. A book may be first published in Australia last week, but it may have been published in England six months ago. We provide that if a book is published here, before or simultaneously with its publication elsewhere, with a margin of fourteen days, that shall be first publication here.. I submit that the clause, as it stands, carries out its object, and if we adopt the amendment that has been suggested we shall cause doubt and obscurity.
Senator MILLEN (New South Wales). - I seem to have got some glimmering from the theatrical example cited, of what Senator Keating is driving at. If the word “ first “ were left out the clause would be intelligible to the ordinary man.
– The word “ first “ makes no difference.
– The word “first” may be struck out if honorable senators desire.
– I think that the word “ first “ makes a big difference.
– Not at all.
– Does Senator Best favour the insertion of a lot of unnecessary words, the only effect of which can be to confuse ?
– I ask leave to withdraw my amendment, in order to give Senator Millen an opportunity to submit the proposal he has indicated.
Amendment, by leave, withdrawn.
Amendment (by Senator Millen) agreed to-
That the word “ first,” line 4, be left out.
– With all due deference to Senator Millen, I think that my amendment would have been better,but, at any rate, the amendment just passed will remove what would probably be a fertile source of confusion.
Clause, as amended, agreed to.
Clause 14 consequentially amended and agreed to.
Clause 15 -
– Will this clause apply to lectures delivered at a University by a professor? University professors are paid like a schoolmaster to lecture to the students, and I should like to know whether any of the latter would be debarred from taking notes oflectures so delivered.
– Under this clause a University student would be at perfect liberty to take whatever notes of a lecture he thought necessary for his own private use, but he would not be allowed to take an extended note, such as a shorthand note, and publish the lecture without the authority of the lecturer. A student should not be permitted to deprive the person who has prepared the lecture of the material advantage likely to be gained from his right to its delivery.
Amendment (by Senator Millen) proposed -
That the word “first,” lines 2 and 4, be left out.
– Apart from the ordinary statute law of copyright, a lecturer has a pro perty in his lecture. It was held in the celebrated case of that very distinguished Scotch professor, Professor Caird, that whilst his students were perfectly entitled to take even shorthand notes for their own private use, they were not entitled to use them for the purpose of lecturing themselves, or for publication in book form. A student or some one else had taken notes of Professor Caird’s lectures and proposed to publish them in pamphlet form, but was restrained by an order of the Court from doing so. In passing, I should like to point out that it is a little difficult to understand how a lecture could be delivered simultaneously in, say, England and here.
– One lecture could be delivered by two lecturers simultaneously in different places.
– I merely point out that the clause reads, rather funnily, and it provides for a condition of things not usual or very likely to arise. It is very seldom that a lecture is delivered at the same time in two places, even by two different lecturers. However, Ido not suggest that the clause should be struck out, because there is nothing impossible under the sun.
Senator KEATING (Tasmania - Honorary Minister). - ‘A person who prepares a. lecture may, while reserving the rights in it to himself, license some one to deliver it elsewhere.
– That is the intention of the clause, I take it.
-Yes. For instance, a person who prepares a lecture, may license some one to deliver it in NewZealand, but, of course, if the lecture were delivered there a considerable time beforeit was delivered in Australia, the copyright would be lost here.
– Is there a singlecopyright Act in which the word “ first “ does not appear?
– I do not know that the Word is of any importance.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 16 -
– Is this clause quite complete in regard to the lecturing right? What about a simultaneous delivery elsewhere?’’
– If a lecture is delivered simultaneously elsewhere, the right dates from” its first delivery in Australia the, same as the publication of a book, or the performance of a drama.
Clause agreed to.
Clause 17 -
– I object to the term proposed for the duration of a copyright. I pointed out on the motion for the second reading, how it is quite possible for a valuable work to be written and published by an author in a very early period in his life, and for that author to live, as some of our distinguished writers have lived, to an advanced age. It is true that on the contrary, some authors have died at a comparatively early age; and if the clause be allowed to remain as at present, it will not operate fairly as between the two classes. Certainly the heirs of an author who dies young will not reap the same advantage, as will the heirs of an author who dies at an advanced age. In any case, the period is too long. For instance, as has often happened, a young author, before reaching the age of twenty-five years, may publish a valuable book, and if he lives to the age of seventy-five, that work may be copyrighted for something over one hundred years. The English Act provides that copyright shall subsist for seven years after the author’s death, or for a period of forty-two years, whichever is the longer. In my opinion, forty-two years is too long for copyright to last. It is certainly desirable that there should be a fixed period, failing the author’s life extending to that period. It must be remembered that no author is absolutely the creator of any work. We are the heirs of all the ages and of the accumulated knowledge of all the ages, and authors certainly owe some debt to the public who have supplied them with knowledge. They ought not to wrap themselves up in selfishness, and say that knowledge obtained from those who have gone before should remain their exclusive property for a very extended period. I think that the period proposed is too long. It would have theeffect of limiting the publication of valuable works at a time when they ought to be free to the public. I have no desire to do any injustice to an author, but if he has the exclusive right to the publication of his own productions during his lifetime, and if it continues to vest in his’ children after his death until they reach the age of manhood or womanhood, that is all that any author should demand.
– That might be longer than the Bill provides for.
– It could not possibly be longer, because it would not take thirty years after an author’s death for his children to reach the age of manhood on womanhood. I move -
That the word “thirty,” line 4, be left out, with a view to insert in lieu thereof the word “ seven.”
If that amendment is agreed to, I shall later on in the clause endeavour to make provision for a fixed period of copyright, and to provide that whichever is the longer term, the fixed period or the life of the author and seven years, shall be the period for which copyright shall endure.
– This is undoubtedly, if not the most important, one of the most important provisions of the Bill. The whole advantage or disadvantage of the Bill rests on the duration of the copyright granted under it. The property whichwe propose to confer upon an author of a work depends on the duration of the copyright which we give him. I agree very largely with the sentiments expressed by Senator Givens, and I shall ask the honorable senator to allow me to move a prior amend ment, which will differ only in one respect from that which he has proposed. I desire to propose that there shall be a fixed period of forty-two years.
– Dead or alive.
– Yes, dead or alive. That is to say, that a man’s property in his book shall be worth fortytwo years purchase at least, but if he lives longer he should have that additional advantage.
– That is the English law.
– It is the English law, and the law which prevails in every State of the Commonwealth, with this difference, that the English law gives the author seven years beyond his life. I never could see, and do not now see, any reason why we should add on that period of seven years.
– The author may leave young children who have not arrived at an age when they can provide for themselves
– That is true. I took the liberty on the second reading of the Bill of dealing at some length with this question, and I should like to sa.y one or two words now in elucidation of what this principle of copyright is. A man publishes his book, and unless there is some tangible property, measurable, as lawyers say, by metes and bounds, he cannot deal with it. The difficulty, which was met by copyright legislation, was the difficulty of making measureable, and capable of being valued, the property which a man had in the productions of his own intellect, as expressed in words. It was like giving him a lease, and saying that he should have a certain right for so many years. If a fixed period were decided on, with an absolute power to stop any one else from reproducing his work, he could go to his publisher, and say, “ I have this to sell you. Here is my book, and attached to it there is a monopoly of publication for a fixed period.” The publisher would then know exactly what he was going to buy. He would be able to estimate his probable profit during that fixed period, and as the author would be also in a position to make an estimate, he could not be taken advantage of.
– It will be only eight, years, if the clause is allowed to remain as it stands.
– It could not be less than thirty years. Under this clause it is proposed that copyright shall be given for the authors life and thirty years after the end of the year in which he dies. The effect of such a provision would be that we should have two measurements of the value of the property the author is to get. One is an absolutely uncertain measurement, and the other is certain. I propose to make an absolutely certain measurement.
– And equal all round.
– And equal all round. If a man goes to a publisher, and says that his interest in his book is a life interest, the publisher mav say, “ You may die to-morrow; I can give you only so much for it. If your interest is for life and thirty years. I can only pay you for a thirty years’ interest, and a margin of, perhaps, a year or two longer. The uncer tainty of life is great, and I cannot pos*sibly assess what your work is worth to me for the period covered by your life interest.” We may make the period long or short, but if we fix a definite period, the author is given something with which he can go to a publisher, and say, “ I give you this book, with so many years’ purchase of the monopoly of its publication.” If forty-two years is not long enough, the Committee can make it longer, but I think it is long enough. In Canada, the term is twenty-eight years.
– With an opportunity given for an extension for fourteen years.
– Yes, it is like the patents law. Here with regard to a patent, the period of protection is fourteen years, with a qualified right of extension for a further seven years, or, in exceptional circumstances, for ‘fourteen years. I prefer a definite fixed period, and I saythat the duration of the copyright should be forty or forty-two years, or the life of the author, whichever is the longer term. That, in my opinion, would be ample. The publisher can make his estimate of purchase on a certain period of forty or fortytwo years, and if the author lives longer so much the better for himself and his children.
– I intended to propose a fixed period of thirty-five years.
– I suggest forty-two years, because that is the period adopted by the Imperial Legislature, and adopted in State legislation throughout Australia, relying on the English precedent. I feel that that is long enough. I remind honorable senators that when, in 1841, it was sought to make the duration of copyright extend during the life of the author and sixty years beyond, the proposal was defeated at the instance of Lord Macaulay, one of the greatest literary men of the last century.. In the following year Lord Mahon, afterwards Lord Stanhope, brought in his Bill shortening the period to twenty-five years beyond the life of the author. That was again opposed by Lord Macaulay, whose views had the greater force, because copyright so gravely affected himself and his own literary productions. The period was then reduced to what is at present the law - forty-two years, or the fife of the author plus seven’ years, whichever term is the longer. I say. that we should leave it at that. It has been at that’ for more than sixty years. In 1875 a Royal Commission made certain suggestions which have never been carried into law, and, so far as I .am aware, the term fixed has worked satisfactorily, and has given to authors a property in their works in a form which is beneficial to them, and which has enabled them to secure a fair price for their work. Every one is aware that a monopoly for a fixed period is a much more saleable product than is a monopoly for an uncertain period. It is like so many years purchase. We give an author a monopoly for a period of so many years, and if he lives longer, and retains his copyright, he has it until his days are ended. If he lives for fifty or sixty years there will have been ample time for him to derive .from his copyright the emoluments necessary to enable him to bequeath the benefit of .it to his children. If, on the other hand, copyright is extended beyond the life of the author, it may have passed into the hands of a publisher, who, after the author’s death, may make use ‘of it to secure a fortune for himself.
– Why should any period after death be allowed?
– I do not propose that any period after death should be allowed. Senator Givens has suggested that we should adhere to the existing period fixed by the English Statute.
– And by State legislation also.
– I agree with Senator O’Keefe that we should not allow any period after the death of the author. We can have a fixed period of forty-two years, or if that is not considered long enough it may be extended. I personally think that it is too long, and that from thirty-five to forty years would be long enough, but in any case we should also extend the period during the author’s life, if that is longer than the fixed period, in order .that if he retains the copyright he may secure the benefit of it during the time he lives. .
– What about the case of an author who sells his copyright for a royalty on the publication of his books, and who, when he dies, leaves young’ children dependent on him?
– He will have had the benefit of the copyright for forty-two years. Suppose he publishes a book when he is sixty years of age?
– Suppose he publishes a book at twenty -five years of age?
– If he publishes a book at sixty years of age, he will get forty -two years copyright of it.
– He may leave young children when he dies, and are they to be deprived of a royalty arising out of the sale of his copyright?
– That would depend on the bargain made with the publisher with respect to the royalty. There would be nothing to prevent an author making a bargain with his publisher that a royalty should continue for 100 years after his death.
– No publisher would make such a bargain when he would know that the copyright would expire before that time.
– It would not expire at least for forty-two years. Of course the most valuable books are usually published when a man has reached the maturity of his powers - that is when he is in middle age, and, therefore, the public get the benefit of a fixed period. The great thing we ought to seek to do is to establish a fixed period so as to put an author on a fair footing when bargaining with his publisher. We want to give him a property, that is copyright - and we ought to enable him to bargain on practically equal terms with his publisher. If, on the other hand, the period is left uncertain, he is entirely in the publisher’s hands.- As Macaulay said, “If you make any amendment in the law, make it in the direction of increasing a fixed period, but do not increase an uncertain period which must always work to the disadvantage of the man who has wares to sell.” I propose to move -
That all the words after the word “ of,” line 4, be left out with a view to insert in lieu thereof the following words - “ forty-two years, or for the author’s life, whichever shall last the longer.”
If that amendment be. carried, I shall move the omission of the words “ author’s life “ and “ thirty years.” This amendment embodies the principle which was advocated by Macaulay, and given effect to by him in legislation still in force on the Imperial statute-book, and it will best carry out first our duty to authors, to give them a property in their works, and secondly our duty to the community to see that the period is not too long,’ in order that in the case of copyright, as io that of patents, the community shall have the benefit of the work.
– I should like to have an opportunity of voting for the amendment foreshadowed by Senator Symon. The chief objection to the amendment of Senator Givens is that it would introduce the element of gambling or speculation. From actuarial tables, we can form a fair idea as to the average duration of life; but still his amendment would introduce the element of speculation In the matter of a copyright. Who would suffer in that case? It would not be the publisher, but the author; and an old author would suffer more than a young one. We ought to give a certain value to a book, just as we give a certain value to a patent. The amendment of Senator Symon would accomplish that object in a very effective manner. In my opinion, it would give a sufficient term of copyright to provide for an author during his life, and also in the greater number of cases for his children after his death. I trust that Senator Givens will withdraw his amendment, and let us have a vote on the proposition of Senator Symon. I shall vote against any amendment designed to enable the chances of an author’s life to determine the value of his copyright.
– I hope that the same provision will be passed as is contained in the Imperial Act ; that is to give copyright for the life of the author, plus seven years, or for fortytwo years, whichever is the longer. With, regard to the point raised by Senator Pearce, he need noi; have any apprehension. Supposing that I were a publisher, and were offered a book. I should know that the author would have copyright for his life, and seven years longer, and it would be very easy for mie to ascertain the actuarial expectation of his life, and if necessary to insure against his death. I think that in justice to the children of an author there ought to be copyright for a few years after his death. Many an author dies in comparatively old age, leaving young children who are not over-well provided for. A copyright for seven years would be a perfect god-send to the family of many an author. As a rule, authors are impecunious, and therefore are not able to leave their children provided for. I hope that if no one else moves in that direction I shall be at liberty bv-and-by to submit an amendment for the adoption of the system which prevails in the United Kingdom, New South Wales, Victoria,
Queensland., South Australia, Western Australia, and Tasmania.
– I intend to support the amendment foreshadowed by Senator Symon; because I think it would be better to have a more fixed period than is proposed in the Bill. Otherwise, we should accord a more valuable privilege to a young author than to an old one. According to the Bill there is a specified term after the author’s death, in which copyright shall endure, so that a young man of twentyfive years of age would have a clear advantage over a man twice that age. I do not see why we should! accord to one man on account of his age a privilege which we do not accord to another. There is no absolute reason why we should not have a fixed term instead of one varied by the life of the author. If a man is fortunate enough to live a considerable time after his work is published, why/ should he”, or, iri the event of his death, his children, get a greater advantage than the children of a deceased author? Take the case of Gibbon, who, although he was very wealthy, died a year or two after he had completed his magnum opus - The Decline and Fall of Rome. Under this provision the Children of such an author would not be left penniless, but would have the advantage of the copyright in the works which had been published. Lately, Mr. E. V. Lucas has published in twelve volumes, Lamb’s Letters, perhaps the most delightful literature in the English language. Unfortunately^ the work is not complete,, because recently some of Lamb’s letters have been discovered and published. If the twelve volumes have been issued, Mr. Lucas is in this position : That he cannot publish them for another forty-two years, although Lamb has been dead for 100 years. It seems, therefore, that under the Imperial Act there is copyright for a term of forty-two years from the date of publication. If that is not provided against in this Bill it should be.
– All through the world copyright runs from the date of publication.
– Why should the public be deprived of, the advantage of a cheap edition of a valuable work for that great length of time? As Senator Symon has quoted the authority of Macaulay, I would mention that Carlyle was also in favour of a fixed period for copyright. In his somewhat characteristic fashion bewrotea petition on the subject, which commenced in these words - “To the honorable the Commons of England in Parliament assembled, the Petition of Thomas Carlyle, a Writer of Books,
That your petitioner has written certain books, being incited thereto by various innocent or laudable considerations, chiefly by the thought that said books might in the end be found to be worth something.
He went on to speak of the publishers, who then got the benefit of the publication, in these terms -
May it therefore please your Honorable House to protect him in said happy and long doubtful event ; and (by passing your Copyright Bill) forbid all Thomas Teggs, and other extraneous persons, entirely unconcerned in this adventure of his, to steal from him his small winnings, for a space of sixty years, at shortest. After sixty years, unless your Honorable House provide otherwise, they may begin to steal.
And your petitioner will ever pray,
Of course, our object is to insure that a publisher shall not begin to steal until the author has enjoyed certain privileges from the sale of his own work. I think that the privilege should be accorded equally to all persons, irrespective of their age. It is here proposed, however, to give advantages according to the age of an author. While I intend to support Senator Symon’s proposal, because it is the best that has yet been made, I think that it would be better to make the term forty-two years, without any variation. Why should we not adopt the same principle in the case of copyright! as we do in the case of patents, which are for a fixed term ?
– I have listened to the remarks of the honorable senators who have addressed themselves to the amendment with great care. It seems to me that there is a disposition on their part to regard this limitation of the term ofcopy right as; being one that will be practically effective in the case of every production that is copyrighted. Quite the contrary is likely to be the case. Experience has shown that the full benefit of the term of copyright is enjoyed in a very small number of cases. Very few books are copyrighted as to which it is necessary to preserve to the authors their rights beyond a very limited period. In a very excellent article contributed to the North American Review in January of this year, Mr. S. L. Clemens, who is better known throughout the world as Mark Twain, says that during the last twentyfive years in the United States more than 100,000 books, and in the last 104 years over 250,000, have been copyrighted. When asked how many of the works survived the forty-two years, he says that the average was five per year. He says that in most instances the term of forty-two years for the operation of copyright, in his opinion, is altogether too short. Mr. Clemens gave evidence before the Copyright Commission in Great Britain, and Lord Thring, in the Nineteenth Century, some little time after the examination made reference to it. I will quote from Lord Thring’s article a little later on. The article in the North American Review is in the form of question and answer, and I would draw the attention of Senator Smith to it. It will be seen that, in Mark Twain’s opinion, it is desirable that the copyright term should have gome relation to the author’s life. He says that the present system is -
A crime perpetrated by a great country - a proud World Power - upon ten poor devils a year.
That is to say, to limit the term of copyright to forty-two years is, in the opinion of an author of some experience, a crime. He goes on to say -
The profits on Uncle Tom’s Cabin continue today; nobody but the publishers get them - Mrs. Stowe’s share ceased seven years before she died ; her daughters received nothing for the book. Years ago they found themselves no longer able to live in their modest home, and had to move out and find humbler quarters. Washington Irving’s poor old adopted daughters fared likewise. Come, does that move you?
That was a case where copyright extended for a limited period, such as is approved of by Senator Symon.
– No; that is a case where the copyright was sold.
– The term had expired seven years before the authoress of the book died.
– The copyright in Uncle Tom’s Cabin was sold long before the death of the authoress.
– It appears, from this article, that the term of copyright had run out while the authoress was still alive. Thepublishers who had issued the book in the meantime were not philanthropists. As soon as the forty-two years’ limit expired, they did not care whether the authoress or he.r relatives were well provided for or not. They concerned themselves with their own interests.
– That was similar .to the case of Milton’s daughter, referred to in Macaulay’s speech, which I quoted.
– Senator Symon has made reference to the fact that a fortytwo years’ period is fixed in the English law, and he says that he understands that that has always given satisfaction. The Royal Commission to which reference has been made during the debate, and which sat in England for two or three years to investigate the whole subject of copyright in Great Britain and other civilized countries, dealt exhaustively with this point. They say with regard to the period that Senator Walker seems to favour - life, plus seven years, or forty-two years, whichever may be longer - and with regard to the fixed term of forty-two years from publication, or life, whichever may be longer, favoured by Senator Symon -
The term of copyright in books is for the life of the author and seven years after his death, or for forty-two years from the date of publication, whichever period may happen to expire last. . . First, the period is said not to be long enough. The chief reasons for this .assertion are that many works, and particularly those of permanent value, are frequently but little known or appreciated for many years after they are published, and that they do not command a sale sufficient to remunerate the authors until a considerable part of the term of copyright has expired. Some works, as, for instance, novels by popular authors, command an extensive sale, and bring to the authors a large remuneration at once, but the case is altogether different with others, such as works of history, books of a philosophical or classical character, and volumes of poems. In some instances, works of these kinds have been known to produce scarcely any remuneration, until the authors have died, and the copyrights have nearly expired. It is also urged that in the case of many authors who make their living by their pens, their families are left without provision shortly after their deaths, unless their works become profitable very soon after they are written.
In the case of ephemeral literature, such as novels, the author looks to get practically the whole of the return from the sale of his books within a year or a couple of years from publication. The remaining’ thirty-five or thirty-six years of the term of copyright are worth very little to him. Consequently we find to-day that works which were published only a few years ago, and which have a term of copyright, extending over the life of the author and seven years,, or for forty-two years, whichever may be longer, are selling; in sixpenny editions ; the reason being that the remaining term of copyright is of very little value. The books have had their day. But historical works and books of research,, as pointed out in the English report, very often do not acquire their full value im the. eyes of the public until many yearsof the copyright term have elapsed. In some cases their value is not fully appreciated until after the death of the author.. If we abridge the term of copyright, authors who have derived no benefit fromworks of that character, would be the less; likely to derive any. The Royal Commission in Great Britain, after consideringthe term of copyright existing in various countries, unanimously .recommend theadoption of a term extending over the life of the author and thirty years after. They say, in paragraph 39 of their report -
We find considerable variety in the terms fixed in other countries, but putting aside the United1 States, which seems to have adopted our existing term with modifications, we find that the moreimportant nations have adopted terms longer than our own. Thus, the term in France is the lifeof the author and fifty years ; in Belgium, lifeand twenty years; in Germany, life and thirtyyears; in Italy, life and forty years, with a second term of forty years, during which other persons than the proprietor may publish a work on payment of a royalty to him ; in Russia, life and fifty years; in Spain, life and fifty years; in Portugal, life and fifty years; and in Holland, life and twenty years. These terms are subject to sundry modifications and conditions; which it is unnecessary for us to enter into, but while we consider it expedient that the existing term of copyright should be altered, we think that the terms fixed by the nations we have referred to are, in some cases, excessive and unnecessary.
In an article in the Nineteenth Century for June, 1900, Lord Thring said -
Mr. Clemens (Mark Twain), in the excellent evidence he gave to the Select Committee of the House of Lords, maintained with great plausibility the proposal that- copyright should be perpetual, for the sake of “ the Immortals,” as he termed them.
– Who would receive the benefit of a perpetual copyright?
– The descendants. It is maintained that the publisher shall not get the copyright, but the descendants of an author.
He reckoned that-the number of British authors in a century, whose works survived fortytwoyears (the limit fixed by the existing law), was sixty-five. He allotted to each of them ten volumes, and concluded that 6v> volumes was the total limit of surviving volumes in the century. Why, he asks, should the richest nation on the earth, by limiting copyright, annually take out of the pockets of the children of the little handful of illustrious men the trifling sums which they would derive from the sale of these volumes.
What follows is in small type, and therefore I presume it is the evidence of Mr. Clemens to which I have just referred -
Great Britain issues 5,000 new books per year. None of these, except six and a half volumes, need the Committee’s help. The’ others will never reach within a thousand miles of the forty -two year limit. They are amply, and even superfluously and extravagantly, protected. The mighty bulk of them will be dead and gone inside of five years. A few of them will live fifteen, others will live ten; but if you average the life of the 5,000 books straight through, a copyright limit of six months would answer all their necessities. The Committee is in no way concerned about their salvation; no legislation could achieve it. The whole batch can be set aside as being perfectly safe under the existing law, or any other for that matter. The only real question, the only important question, the only high and worthy question, as it seems to me, is how to save the six and a half volumes.
Practical experience shows that this term of copyright would, in actual fact, apply to such a small proportion as six and a half books out of 5,000; and honorable senators, will recognise that, by providing this term, we are not inflicting any injury or hardship on the public. As pointed out in the report from which I have quoted, the works which do survive forty-two years are mostly of a character which have to wait for a considerable time, and receive the attention of students and others, before their real value is recognised, and they begin to grow in demand. Under all the circumstances, the report recommends that the term should be for life and thirty years; and there is reason to believe that, if in Great Britain the copyright law were recodified that term would be adopted. If that were so, there would then be harmony between the British Act and the Act of the Commonwealth. A term for life and thirty years afterwards has an advantage over the proposal of Senator Symon. The honorable and learned senator proposes forty-two years, or the life of the author,whichever , period is the longer, thus providing an alternative. The life of the author, of course, is not a fixed term, and when he goes to negotiate with a publisher, the latter is not in a position to know how long he will have the copyright for.
– There would be the fixed term of forty-twoyears.
– It has been pointed out during the debate that if a young man of twenty-odd years of age published a book, he would get protection for forty-two years, or for his life, whichever period was the longer. It has been suggested that the same man might twentyyears later bring out another book, and that, in respect to the latter, the terms would be the same ; but, if the forty-two years’ proposal operated in both cases, the copyrights would fall in at different dates, and publishers would not be aware of the fact. A man between the ages of thirty and forty-five years might publish one or, two books every year; and if he died at the age of sixty, the determination of the various copyrights would be different.
– Why should it not?
– There would be no chance of knowing when the copyrights would fall in.
– The period of forty-twoyears would be fixed.
– The same Commission, in paragraphs 29, 30, and 31 of their report, state -
Copyrights subsist under the Bill from the date of first publication, independently of registration ; and all kinds of questions would arise as to whether a book brought out in a certain year has had its full term of fortv-two years. If, on the other hand, we make the term for life, plus thirty years, it could always be ascertained with exactness when a person died, and it would be easy to determine to a day when the copyrights ran out. This matter had caused extreme difficulty in England, and evidence was given at the inquiry by publishers and others.
– Why study the publishers, when we are concerned with the authors ?
– The Royal Commission did not confine their attention to the interests of publishers, as will be seen on reference to the list of witnesses examined during the three years.
– What interest would the author have in the matter when he was dead?
– An author when alive would have the interest that after his death the rights in his works, if they were of any value, would be preserved to his family or his representatives for the definite period of thirty years. If,- on the other hand, he was an author who worked intermittently, he would simply have the half satisfaction of knowing that, in respect of some of his works, there would be a fair measure of copyright, and in respect to others, the value of which had not been properly appreciated, that the copyright was very nearly running out. “Under all the circumstances, seeing that the matter has been reported on so fully in the light of the best evidence procurable, we should be well advised in adopting the term recommended by the Royal Commission, in the interests of the author himself, of those who represent him after his death, and of the public.
– Senator Keating has made a very excellent fight, not necessarily for his view, or for any view entertained in Australia, but for the view of a Royal Commission, the report of which has been allowed to lie dormant and accumulate dust for the last thirty years. The answer to Senator Keating is 4hat this report has never been acted upon.
– The House of Lords passed the Bill.
– The Bill has never been enacted.
– The Bill itself, providing this term, was passed by the House of Lords.
– What is the use of talking about the Bill being passed by the House of Lords, which is the more insignificant portion of the Imperial Parliament?
– The honorable and learned senator said that ‘the report had never been acted upon.
– I do not call that acting upon the report.
– I do.
– That only shows that Senator Keating does not use terms accurately. The report of the Royal Commission has not been acted upon, legislatively.
– Why did the honorable and learned senator use the word- “ legislatively “ ?
Senator Sir JOSIAH SYMON.Be.cause I was speaking legislatively. Therecommendations of the Royal Commission have never been given legislative force. Senator Keating has made excellent use of the report, but what is the use of quoting recommendations which were made twentyseven years ago, and which the Imperial Parliament has not brought into force by, legislation? Both Senator Keating and myself want a fixed period, that favoured by the honorable and learned gentleman being thirty years, whereas I propose forty-two years. The fixed period proposed by the honorable and learned senator is attached to the uncertain period of a man’s life, and that, of course, is nothing on which to negotiate with a publisher. It is valuable to have a fixed period of thirty years or forty-two years, but an author would be entirely in the hands of a publisher as to_ what was uncertain. The whole tendency of legislation in the past in England has been, if possible, to lengthen the fixed period and diminish the uncertain period, and if there be an alternative, subject to the point referred to by Senator Givens, it ought to be in the direction of strengthening the fixed period.
– I have no intention to stand in the way of Senator Symon submitting his amendment, and I shall ask leave to withdraw my proposal, in order to give him an opportunity. So far, I have heard no argument to induce me to believe that any of the suggestions made are more commendable than my own proposal. I fail to see the force of some of the arguments which have been used by Senator Symon and others, as to the desirability of accepting his amendment in preference to mine. It has been said that my amendment introduces a gambling element, but the same gambling element is in the proposal suggested by Senator Symon. My proposal is that the term shall be the author’s life and seven years, or a fixedperiod of forty-two years, whichever is the longer, whereas Senator Symon’s proposal is that there shall be fixed period of forty-two years or the author’s life, whichever is the longer. I should like to ask those who say that my amendment introduces the gambling element whether there is more of the gambling element in a provision for a period covering the life of a man and seven years than in one covering his life without seven years. This is a ridiculous argument to put forward in support of Senator Symon’s amendment. It might’ frequently happen that a man would die at just about the time when the forty-two years fixed period would expire. Immediately he was dead, copyright in his works would expire, ‘ and then the hardship would arise which Senator Keating quoted for us as indicated by Mark Twain, and commented on by Lord Thring.
– His work might not be published for seven years after his death.
– Then there would be a fixed period of copyright for forty-two years. Suppose the fixed period of fortytwo years, and an author’s life expire about the same time, say, for instance, that a man publishes a work at thirty, and dies at seventy-two years of age, his copyright in that work would cease exactly at the time he died, notwithstanding the fixed period suggested by Senator Symon. It would be a very great hardship indeed if he left a widow or young children that they should be absolutely deprived by his death of all profit from his work. Such cases are possible, and it is our duty to avoid giving rise to such hardships if we can. A publisher cannot be expected to give any of the proceeds from the publication of the works of an author to his relatives after his death, if the period of copyright in those works has expired. In these days, when competition is so keen, it is probable that there is not one publisher who could afford to do so, because every publisher has then the same right to publish those books, prices are cut down to bedrock, and only sufficient is left for ordinary trade profit. In justice, therefore, to relatives who may Be dependent on an author, it is desirable that we should give a copyright for seven years in addition to his life as an alternative to the fixed period of forty-two years. I point out that in doing so we shall only be acting in accordance with what has already been done in Great Britain, and in every
State of the Commonwealth. I have never heard that a single word has been raised against that provision in Australia or in Great Britain. I am inclined to think that a fixed period of forty-two years is rather too long, but as it seems to be the general wish of the Committee to enact a fixed period of that duration I waive my objection to it. But I am not willing to agree to a fixed period of forty-two years and an alternative of the life of the author. I favour the provision of the law of Great Britain, and of every State of the Commonwealth, that a period of seven years after the author’s death should be the alternative to a fixed period of forty-two years. By leave of the Committee, I will temporarily withdraw my amendment, in order to allow Senator Symon to move the amendment he has indicated.
– I wish to emphasize something which Senator Givens has been saying. We know by experience that it frequently happens that when a prominent author dies a very great demand arises for his books. At the present time we have before us an illustration of the sudden demand which may arise for the works of an author on his death. Several years ago a celebrated book was published, and when the author died the other day a great demand for it arose at home. I refer to Shorthouse’s John Inglesant. It is what is called a philosophical romance, and there is a very great demand for that work at present.
– Copyright in John Inglesant has not yet expired.
– I am aware of that, as the book was published in 1881. But a new demand for the book has arisen since the death of the author. Senator Smith made a. remark to the effect that Charles Lamb had died 100 years ago, and’ that new “ Letters of Elia “‘had been discovered recently, for which there would be forty-two years’ copyright. I refreshed my memory on the subject, and I find that Charles Lamb died in 1834, only seventyOne years ago. I should not like it to goabroad that we all think a man died 100 years ago who died less than seventy-two years ago. We know that towards the end of an author’s life he often publishes his autobiography, and it would be rather unfortunate if his family at his death should” not be able to secure any benefit from such> a work. I hope that Senator Givens’ suggested amendment will be carried, and that the period fixed will be forty-two years, or the life of the author and seven years.
Amendment (by Senator Sir Josiah Symon) proposed -
That all the words after the word “ of,” line 4, be left out with a view to insert in lieu thereof the following words - “ forty-two years, or for the author’s life, whichever shall last the longer.”
Amendment of the amendment (by Senator Givens) proposed -
That after the word “life” the words “and seven years” be inserted.
– I have been very much astonished, especially by the conduct of my honorable friends on my right in making such a determined assault on what must, I think, be considered the sacred rights of property. I always understood those honorable senators to be determined defenders of those rights. Is not a book which a man writes his own property, the product of his own brain? That being the case, should he not have full possession of it during his lifetime, and be in a position to bequeath any benefits arising from it to his posterity?
– For ever?
– Yes, for ever. If Senator Millen acquired a landed estate, he would call it confiscation if any one attempted to take it from him during his life, and if the honorable senator were not permitted to hand it down to his children after his death, no one would be louder in protest than he would. The production of a book is just as much the product of an individual’s brain and energy as is the building up of a fortune.
– Would’ the honorable senator apply the same line of reasoning to all patents?
SenatorSTEWART.- I am not very sure that I would not. I do not see how we can deprive a man of one particular kind of property, whilst another form of property is looked upon as sacred. The only gleam of satisfaction I have in connexion with the whole matter, is that we have an admission from honorable senators on this side of the Chamber, that even property is not to be looked upon as sacred.
– And an admission from the honorable senator that certain forms of property are sacred.
– And that it must give way to the interests or desires of the community. I welcome that admission very heartily. If we live sufficiently long we may ask these honorable senators to apply this newly-found principle in some other direction, when I trust we shall have their support as freely as it is given on the present occasion.
– The honorable senator is dissenting from that principle.
– I find that the Committee is unanimous, and mine is the only voice raised in defence of property. On this occasion I am “ a voice crying in the wilderness.” There is not much use in my protesting against what is being done, as I find that the great majority of honorable senators are anxious to limit an author’s right to the production of his own brain. Some honorable senators would do that during his life, and all of them would appearto be prepared to limit the interests of his children in an author’s work. As the Committee seems determined to take this course I can only acquiesce.
Amendment of the amendment agreed to.
Amendment, as amended, agreed to.
Sub-clauses 2 and 3 consequentially amended.
Clause, as amended, agreed to.
Motion (by Senator Playford) proposed -
That the Senate do now adjourn.
– During the recent debate on the Bill to authorize the survey of the Kalgoorlie to Port Augusta railway, repeated assertions were made as regards the attitude adopted by the Government of South Australia. Both the Age and the Argus of to-day contain a statement by the Premier of that State. The one in the Age reads as follows : -
Mr. V. L. Solomon asked the Premier, referring to a statement made by members of the Federal Parliament, “ that South Australia had given a solemn guarantee to authorize by Act of Parliament the construction of a line of railway from Port Augusta to the Western Australia border,” whether such a statement was in accordance with fact, and if there was the slightest warrant for such assertion.
Mr. Price replied : “ On 1st February,1900, the then Premier (Mr. F. W. Holder) undertook, as soon as Federation was established, to introduce a Bill formally givingtheassent of this State to the construction of the line by Federal authority, and to pass it stage by stage simultaneously with the passage of; a similar Bill through the Western Australian Parliament. This had j nth June, loot) the support of the Jenkins Government, conditionally upon the line joining the Western Australian one forty to sixty miles north of Eucla. In 1903 the Premier (Mr. Jenkins), while on a visit to Western Australia, personally promised to introduce an Enabling Bill, but with the further stipulation that the powers conferred upon the Federal Parliament should be exercised within a period of three years. Again (29th June, 1903), Mr. Jenkins promised to bring in a Bill for the construction of the line, subject to Western Australia passing an Act indemnifying South Australia against any financial loss for ten years from the completion, with a stipulation as to3½ft. gauge, and for the line to go through Tarcoola to Port Augusta. This indemnity was offered by the Premier of Western Australia on 26th June, 1903.”
It was repeatedly hurled at us by the opponents of the measure that we had no authority for the statement we made.
– The authority is the Premier of South Australia.
– Where ?
– The authority I have quoted.
– That is merely a statement that several Premiers have promised to do things which they did not do.
– We want an Act of Parliament.
– On page 966 of Hansard, Senator Dobson said the Parliament was not asked to do the business in a proper manner, and that the consent of the State concerned ought to be obtained before a shilling was spent on the railway.
– The honorable senator ought not to refer to a former debate of the present session.
– If I am out of order, sir, in making this reference, of course I must bow to your ruling. My object in raising this question now is to show that not only were we within our rights in making the statement we did, but that the Premier of South Australia who, so far as I know, is not’ friendly to this project, has publicly, in. his own Parliament, recognised and placed on record these pledges in answer to the question challenging the right of honorable senators here to make the statement they did.
– I read all that in the correspondence; but what we wanted was an Act of Parliament.
– The honorable and learned senator not only asked for ah Act of Parliament, but strenuously contended that South Australia had in no way offered us any inducement.
– In a proper way!
– I read this report in order to show that the present Premier of South Australia recognises that an inducement was held out to us by the Premier of that State prior to Federation, and also by his successor; that a definite promise was made by each Premier that a Bill would be introduced, and the statement made yesterday by the present Premier fully justifies the statements which were made here by the senators for Western Australia, and challenged by honorable senators on the other side.
-That extract does not alter the position one iota.
– We must all admire the energy and perseverance of our honorable friend. But I see nothing in the evidence so called that he has produced, as to a pledge by South Australia. No doubt a pledge was given bySir Frederick Holder when Premier of the State, and, perhaps, by his successor, Mr. Jenkins, and others.
SenatorGuthrie.- But Mr. Jenkins pledges were conditional.
– Yes, they were. These promises, if put to the test in the Parliament of South Australia, might meet with the same fate as the promise of Mr. Deakin when Prime Minister, that’ if he could help it he would not allow civil servants to be. included in the operation of the Conciliation and Arbitration Bill.
– But they did notintend to carry out their promise.
-One might just as well claim that Sir John Forrest’s stater ment that the contribution of Australia to the British Navy ought to be £5,000,000 per year, expresses the opinion of Australia on that question.
– Is the honorable senator aware that Senator Dobson said that if we were to send men tq make the survey they would be summoned for trespassing?
– I said theycouId be summoned.
– Not that they could, but that they would be summoned.
– The point of the honorable senator is that South Australia pledged herself to carry out a certain work, and the only evidence in support thereof is the word of Sir Frederick Holder and other persons, which, in his opinion, may amount to evidence, but which I do not think amounts to very much.
– I should like to remind Senator Pearce of this fact that, in spite of all the evidence he brings that certain persons holding public positions did make promises, one of them, Mr. Jenkins, laid it down in a public document that no promise could be binding unless it was contained in an Act of Parliament. That seems to me to sum up the whole position - that one of these gentlemen, whose individual promise is relied upon, has candidly told us and Australia, “You must not take my promise as binding ; no promise except that contained in a resolution pf Parliament can be held to be binding.”
Question resolved in the affirmative.
Senate adjourned at10.1p.m.
Cite as: Australia, Senate, Debates, 13 September 1905, viewed 22 October 2017, <http://historichansard.net/senate/1905/19050913_senate_2_26/>.