2nd Parliament · 2nd Session
The President took the chair at 10.30 a.m., and read prayers.
– I do not intend to express a final opinion now; but it seems to me that in all probability ‘ the notice of motion relating to public servants, which has just been given by Senator Staniforth Smith, ought not to appear on the noticepaper, as it is in contravention pf the stand ing order, which forbids the anticipation of the discussion on a. question. Honorable senators will see that Senator Neild has given notice of his intention to discuss on the 9th November, the Public Service Commissioner’s report, and to move a motion relating thereto.
– - But relating to only one phase of the subject.
– I know; but an honorable senator, by altering the terms of his motion, and discussing different phases of a question, could initiate several debates on .the same subject-matter. On this particular question it is quite competent for an honorable senator to so word’ his notice of motion as to bring, forward apparently a different issue. If that is so, certainly it is in contravention of the spirit of the standing order. The question resolves itself into this : Can Senator Smith move the motion, of which he has given notice, as an amendment to Senator Neild’s motion. If he can, undoubtedly the sub ject -matter is the same. I shall look into, the question, and if I come to the conclusion that the notice- of motion ought not to appear on the notice-paper, I shall give: a direction accordingly.
– May I point out to you, sir, that I have drawn up this notice of motion iri such a manner that I think it in no way touches the matter which is included in the notice of motion which has been -given by Senator Neild for the 9th November.
– I have already pointed out that if it were permissible to initiate a number of debates on the same subject-matter by dealing with different phases of it, we might have the whole session taken up with the discussion of one question.
– May I point out to you, sir, that Senator Neild proposes to deal “with the transference, vide the Public Service Classification, of officers from the clerical to the general division,” and with certain eventualities arising out of, that.
– That is quite clear.
– Senator Neild’s notice of motion deals with something which occurs as the result of officers being transferred from one division to another. But I have not touched that point, and, therefore, my notice of motion could not be proposed as an amendment to a noticeof motion dealing with a different subject-matter.
– I shall look into the question, as carefully as I can.
– On the 25th August, sir, when dealing with a very similar matter, you expressed the opinion that it was desirable to alter the Standing Orders. If one may speak for honorable senators generally, the Senate appeared to be entirely with you on that occasion. I desire to inquire, if any steps have been or are being taken to bring the matter under the notice of the Standing Orders Committee with a view to give effect to your opinion.
– I have written a memorandum on the subject, which I have submitted to Senator Higgs and Senator Gould, and which I intend to send round to other members of the Standing Orders Committee, which will meet on Thursday next.
– In reply to some questions put by Senator O’Keefe. yesterday, the Minister of Defence said that the Government wanted to get a High Commissioner, but they did not know whether they would succeed. I wish to ask the honorable senator whether he meant by that reply that he does not know whether Parliament will pass the High Commissioner Bill, or whether, if that Bill be passed, the Government may not be able to get a gentleman to fill the position?
-Man proposes sometimes, but a bigger power disposes. Therefore, in stating yesterday that I did not know if we should succeed, I only spoke the truth. There is not a single member of the Senate who knows whether Parliament will pass the High Commissioner Bill. I believe it will, but I am not sure.
– Does the Minister consider the passage of the Bill a matterof pressing importance?
– I ask the honorable senator to give notice of that question.
– Will the Minister of Defence kindly explain whom or what party in Parliament he alluded to in his answer as. the “ bigger power”?
– I did hot allude to aparty in Parliament, but to the party above. I commenced by saying “ man proposes,” but I did not complete the quotation.
– The honorable senator said a “ bigger power.”
– I, had in my mind the old maxim “Man proposes, but God disposes. “ That is the bigger power I meant, but I did not finish the quotation.
asked the Minister representing the PostmasterGeneral, upon notice -
– The answer to the honorable senator’s questions is as follows: -
Inquiries are being made, and replies will be furnished as early as possible.
Senator STANIFORTH SMITH.Shall I give notice of a question later on ?
– If the honorable senator likes to put the question down for a day next week he can.
– The honorable senator cannot do that now.
– I take it, sir, that by leave of the Senate, the notice of questions can be postponed until next Wednesday?
– I think we shall get into a bad practice if we depart from the Standing Orders. The honorable senator can give another notice for next week.
SenatorSTANIFORTH SMITH.- I shall give a fresh notice for next Wednesday.
asked the Minister of Defence, upon notice - 1.If his attention has been drawn to an interview in the Melbourne Argus of the 16th September, 1905, with the State Commandant of Victoria, in which Mr. Crouch, a captain of the Citizen Forces, is constantly referred to by his military rank by his senior officer, ColonelRicardo, and in which the statements made byMr. Crouch in the
House of Representatives are referred to as “ misleading …. drawing wrong inferences,” Stc. ?
– The answers to the honorable senator’s questions are as follow: -
asked the Minister representing the Minister of External Affairs, upon notice -
Will Ministers cable the Agents-General to ascertain in their proposed conference with General Booth- 1, What class of immigrants the General proposes to send to the Commonwealth, and particularly their fitness for settling upon the land ? 2, What capital, if any, they can bring with them ? 3, What terms the General suggests and the immigrants will expect as to the price to be paid for the land they may purchase, and the mode of payment? 4, What financial aid these immigrants, having no capita], will require to enable them to erect buildings and fences, and procure stock, tools, and seed, &c, until their first crops are harvested, and the terms of repaying such advances? 5, What advances, if any, General Booth is prepared to make towards the passage money of each family, and what is expected of the- Commonwealth in this respect? 6, Is the General prepared to send the Commonwealth the 5,000 families at the rate of from 500 to 1,000 families a year, as may be required, and is he prepared to allow one or more of the AgentsGeneral, or their nominee, to discard any families npt appearing to be desirable immigrants?
– The answers to the honorable and learned senator’s questions are as follow: -
With regard to questions 1 and 2, General Booth’s cable states : -
Principally agriculturists and those engaged in allied industries.
They are not destitute.
4, 5, 6. It appears that particulars in regard to these questions are being obtained by the Agents-General for the States concerned. In any case, it does not appear desirable for the Commonwealth to give instructions to State officers who are not under its control.
Bill read a third dme.
In Committee (Consideration resumed from 2 1 st September, vide page 2588):
The copyright in a book, the performing right in a dramatic or musical work, and the lecturing right in a lecture, shall be personal property, and shall be capable of assignment and of transmis-. sion by operation of law.
Upon which Senator Sir Josiah Symon had moved, by way of amendment -
That the words “in a book” be left out.
-. - On looking through the Bill, I find that the words “ the copyright in a book,” “the performing right in a dramatic or musical work,” and “ the lecturing right in a lecture,” appear not only in this« clause, but in other clauses. For instance, clause 13 defines “ the copyright in a book”; clause 14 defines “ the performing right in a dramatic or musical work ‘ ‘ ; and clause 15 dennes “the lecturing right in a lecture.” It is desirable to adhere to the words used in those clauses, so that there may be no doubt or obscurity. There are other kinds of copyright - for instance, the copyright in an artistic work - which is dealt with hereafter; and clause 33 deals with trie protection of newspapers. There might be questions raised as to how far the word 1 “ copyright,” if used baldly and vaguely, as proposed by this amendment, might be construed in relation to the copyright in an artistic work, ‘and the. copyright in news. ‘For the sake of insuring greater certainty, and uniformity, it is better to retain the words “ in a book “ in this clause.
– Of course, the question is simply one of making the clause effective. My honorable friend, Senator Keating’s, observations do not touch the point. What is the property we are dealing with ? Copyright. Are we to make copyright personal property in every instance, or are we only to make .copyright in a book personal property? Our object is to make property in every kind of intellectual production copyright. Senator Keating says that in this clause we are referring only to books. It is clear that the definition must be enlarged ; but apart from that, we do not want to .limit the description of”. personal property to property in a book. There is also copyright in musical productions, and in artistic works. Copyright, no matter to what it appertains, should be personal property. Therefore, we should so define it. The word copyright is the term which we employ to define this form of personal property, just as we might use the word land, or easement, or any other of the terms with which lawyers are more or less familiar. I quite agree with what Senator Keating has said as to the complexity of a Bill of this kind, and, of course, he cannot be expected, off-hand, to see the full effects of every amendment. But this is an amendment the advantage of which, it seems to me, is so obvious, with a view to create the kind of personal property that is dealt with, that I would ask myhonorable and learned friend to give fuller consideration to the point.
Senator KEATING (Tasmania.- Honorary Minister). - In deference to the suggestions made last evening, I have given full consideration to the matter, and I would1 ask the Committee to assist me in adhering to the clause exactly as it stands. No doubt we do intend to provide that copyrightshall be, in every instance, personal property. But the scheme of this Bill is to deal with literary, musical, and dramatic copyright in one separate division. Later on we shall consider the clauses respecting artistic copyright. In that part of the Bill we make a similar provision. If we were to provide simply in a division of “literary, musical, and dramatic copyright,” that “copyright” baldly and vaguely shall be capable of assignment, licence, transmission, and so op. it would not tend to make the measure clear. Clause 34 describes what copyright in an artistic work means. But if, before we reach that clause, we providebaldly that “copyright” shall be personal property, it will be open to question whether the copyright we provide for is not the copyright we have already dealt with. Part 4 of the Bill is devoted to copyright in artistic works.
– Has that any bearing on the point?
– Yes ; because we are dealing with the subject in divisions. The particular part of the Bill with which’ we are now dealing is not devoted to the consideration of all the kinds of copyright contemplated by the Bill.
– That does not matter.
– It matters a good deal.
– We require to include everything that is dealt with in Part 3.
– I propose to meet Senator Drake’s objection to the present form of the clause by providing in the definition clause that the word ‘ ‘ book “ shall cover the case of an article that is separately contributed to a magazine or periodical. But in this division we are simply dealing with “literary musical and dramatic copyright.” So far, we have not touched “ artistic copyright,” or defined what it means. In Part 4, which deals with that division of the subject, there is a clause similar to this, providing that artistic copyright shall be personal property capable of assignment, and so on.
– The scheme of the Bill is to give the status of personal property to copyright wherever it subsists.
– But the Bill takes three clauses to deal with what might be dealt with in one.
– That maybe so. But we are treating variouskinds of copyright in separate divisions. Those honorable senators who followed, my remarks in moving the second reading will understand why that course has been followed. I think it much more convenient and satisfactory that we should deal with the separate aspects of copyright in the separate divisions assigned to them. Therefore, I ask the Committee to adhere to the clause, as it stands.
– The Minister’ in charge of the Bill stated that honorable senators who followed his argument in moving the second reading will see the reason why the Bill has been drafted in its present form. I must admit at once that whilst I followed his argument I am utterly unable to appreciate the conclusion to which it seems to have led him. If the Bill means anything, it makes it as clear as possible, taking clauses 24 and 43 together, that the intention is to make copyright personal property, whether it subsists in a book, an artistic work, or a dramatic right. It seems to make the Bill unnecessarily cumbersome, and likely to lead to confusion to state in three clauses what could be stated in. one. Clauses 24 and 43 both . state that copyright, when secured, shall be personal property. Why not say so in one clause? Nothing that the Minister has advanced convinces me that there is wisdom in setting out in many lines what might be stated in two.
– It appears to me that if what Senator Millen and Senator Symon have argued foe true, clauses 24 and 43 should be struck out, and a new and comprehensive clause substituted. But, after all, the gain would be very small. It would simply save one clause.
– And secure simplicity.
– I am not sure that we should gain in that respect, because, as Senator Keating has pointed out, this Bill deals with particular kinds of copyright. A person who is interested in artistic copyright is concerned only with Part 4 of the Bill. He is not concerned with copyright in a book. His rights and privileges are sent out clearly in Part 4. If the parts dealing with copyright in1 books and artistic works there were not declarations as to personal property in copyright, but simply a general declaration at the end of the Bill, that would1 be vague. It would be a loose method of drafting, and might lead to some doubt as-to whether there was personal property in these particular kinds of copyright. The most that can foe said on the point . is that it is one of drafting. It is a mere question of which is the better way to put what is intended. It seems to me that the Bill as it stands is better in form, and will lead to less confusion than the course advocated by Senator Millen. I support the clause in view of the promise of the Minister that the definitions will be extended to meet “Senator Drake’s point.
Senator Sir JOSIAH SYMON (South Australia). - I should have thought that when a Bill was passing through the Senate it ‘ was desirable that whilst in the first place it should give effect as far as possible to our intentions, it should also be a credit to us in respect of lucid arrangement and draftsmanship. I agree with Senator Millen that to begin with this is very bad draftsmanship. I should like the Bill when it leaves the Senate to be a model in every way. It should, as far as we can insure that end, go down to the House of Representatives in a shape above criticism, and it should also be so perfectly clear that he who runs may read. The Minister will not, I am sure, say that if there, is a declaration in this clause that, copyright shall be defined as personal property, the effect will not be to make .it personal property from beginning to end of the Bill. But he says that copyright in this Bill relates to different kinds of works, and, therefore, he thinks that we should reproduce the same clause under the heading of artistic copyright in Part 4. It must be iemembered that the headings in Bills are arbitrary. A heading has no relation to the construction of the measure itself, any more than has a marginal note. An Act is construed by a Court quite irrespective of headings and notes. We are dealing with the subject of copyright, and providing that a copyright shall have all the qualities of personal property, and shall be assignable. That is merely giving to copyright certain qualities which property of this character possesses, in order to put within clear limits the nature of the possession. My view is that we have ir» the Bill a duplication of words which might be avoided. In the very next clause it is provided that copyright in a book, the performing right in a dramatic or musical work, and the lecturing right in a lecture, shall be deemed to be distinct properties. Why should this Bill be made, perhaps, a third longer than is necessary, by this repetition in s& many clauses? I should like to see the whole of these words struck out, nol? merely,- in clause) 23, but in subsequent clauses, with a view to simplicity and clearness, and that brevity which no man ever more exemplified in drafting than did the late Minister of Trade and Customs, Mr. Kingston. The measures prepared by that gentleman are, in that respect, models, there not being one word too many ; whereas the Bill now under consideration contains many words which are unnecessary. If clause 34 were omitted, it would still be provided that copyright in every subject-matter of copyright is personal property. This’ is a mere matter of arrangement, and I commend the suggestion of Senator Pearce to the Minister. It would be more artistic to have one general clause inserted before the provision dealing with infringements, in order to define the property itself as personal property with the incidents thereof, and, in my opinion, we ought to eliminate all words which are superfluous.
Senator MILLEN (New South Wales). - The Minister asks us Jo retain this clause, and also, presumably, the clause dealing with artistic copyright, on the ground that it is desirable to have a separate provision of the kind under each division of the Bill. Whatever strength that argument might have had is destroyed bv the Bill itself,’ because, if it be desirable to have a separate mandate in the Bill to the effect that copyright is personal property under the various headings, why does the Minister have separate provisions in the division of the Bill dealing with infringements? In clause 45, for instance, the whole of the copyright, whether in a book, a dramatic work, a- lecture, or artistic work, is dealt with at once, and the same course is taken in clause 53-
– Why should it not, there being only one property in copyright ?
– That is true; but, while the Minister is asking us not to group the provisions in one simple clause, the Bill itself, in the division dealing with infringements, adopts that very reasonable course. In ninety-nine Acts of Parliament out of a hundred, the practice now suggested is followed. The Constitution itself, instead’ of multiplying provisions which are common to several divisions, sets them out separately so far as is necessary, but where provisions ‘ apply to more than one matter, they are grouped under one heading. For instance, there are separate divisions for the Senate and the House of Representatives, where necessary, but there is a third division dealing with matters common to both Houses of Parliament. Clause 24 is common to more “than the subject dealt with in that clause - it is common to copyright in any form. Fo.r that reason it appears to me that this multiplication of provisions makes the Bill unduly cumbersome, and likely to lead to complications.
Senator Sir JOSIAH SYMON (South Australia). - I should like to ask the Minister a question in regard to a matter which is very important in this connexion. Under clause 23 will the translation of a book be included ?
Senator KEATING (Tasmania- Honorary Minister). - In answer to Senator Symon’s inquiry, I am of opinion that the clause will not apply to a translation if it be a manuscript ; but if it be published, the publication will obviously be a book.
– That is not in the definition.
– If the honorable and learned senator were to translate a work from German into English, and publish it, that publication would obviously be a book, and certainly come under the clause.
– If the honorable senator will look into the matter, he will find he is mistaken, for under clause 30 there appears to be a separate kind of copyright given to a translation.
– I shall not anticipate clause 30, and the only reply I can give to the inquiry is a direct one. Senator Millen appears to have hardly appreciated the argument I used. The honorable senator suggests that” it is my desire to repeat certain provisions in every division of the Bill. There are eight parts of the Bill; and Part 3 deals with “ literary, musical, or dramatic copyright “ ; while Part 4 deals with “ artistic copyright,” each division being self-contained. But when we come to Part 5, which deals with the “ infringement of copyright,” we find one of those general divisions which apply to the whole scope of the measure, in the same way, as do those general sections of the Constitution referred to by the honorable senator.
– Does the Minister tell me that it would be impossible to put under one general provision the matters now under discussion? ‘
– Yes ; and for the very reason which the honorable senator cited in the case of the Constitution. In the Constitution certain provisions dealing with the Senate alone, and others dealing with the House of Representatives alone, are relegated to separate divisions, and while there are duplications in some instances, the provisions which apply to the whole scope of the Constitution are dealt with separately and in generic terms. In reference to Parts 3 and” 4 of the Bill, I invite the Committee to consider not merely the desirableness, but the necessity ‘to affirm distinctly and separately- - .
– Then why not have a duplication in the division dealing with infringements?
– Because, as I point out, Part 5 covers the whole ground of the Bill. _ In Part 3 we affirm that copyright in a . literary, musical, dramatic, and lecturing work shall be personal property, but nothing is said about copyright in artistic work until we reach Part 4. Honorable senators opposite ask us .to provide in clause 23 that copyright, baldly and vaguely stated, shall be personal property.
– Does the Minister say that “copyright” is vague? Is it not the property we are creating?
– We provide in clause 23 that copyright in a book shall be personal property, because books are dealt with in clause 13; and we make the same provision in regard to dramatic and musica! works and lectures, because these are wait with in clauses 14 and 15 ; but thus far we have not in any way considered the question of artistic copyright. ‘“‘When, we come to the next division of the Bill, which deals with “ artistic copyright,” we start with a definition of what artistic copyright shall mean, and the whole of Part 4 deals with that question, providing that it shall be personal property. The suggestion of Senator Symon is an alternative ; and I a’sk honorable senators, who have had an opportunity to consider the Bill, to adhere to the provisions as drawn, unless very good reason can be shown to the contrary. The Bill has been circulated for a considerable time; and Senator Symon has expressed a hope, which I re-echo, that when the Bill leaves this Chamber it may be in a form creditable to us.
– The Minister is not doing much to assist to that end.
– I venture to say that the suggestion of the honorable and learned senator would not make the Bill more creditable in form. It has been suggested - I am not now dealing with the alternative proposal - that when we provide that copyright shall be personal property, we mean copyright throughout the Bill, including artistic copyright. I have my doubts as to the accuracy of that view.
– Is there any foundation for the honorable senator’s doubts ?
– There is.
– Will the honorable senator state one reason?
– One reason is supplied in the erroneous statement made by the honorable and learned senator who, to substantiate his position, informs the Committee that the divisional headings have no more to do with the Bill than have the marginal notes.
– I said that thev had nothing to do with the construction of ‘the Bill.
– The Acts Interpretation Act, section 1.3, provides -
The headings of the parts, divisions, and subdivisions into which any Act is divided shall be deemed to be part of the Act.
– That is quite right.
– The honorable and learned senator said the contrary.
– I said nothing of the kind; what I said was that the divisional headings would not be considered by a Court in construing the Act.
– I appeal to ever member of the Committee as to what the honorable and learned senator said. In the same section of the Acts Interpretation Act, sub-section 3, it is provided -
Neither the marginal notes nor the footnotes to any Act shall be deemed to be part thereof.
– Senator Symon certainly put the divisional headings and the marginal notes on the same plane.
– As they are, in the matter of construction.
– By the Acts Interpretation Act we have made an express departure from what is the usual law1 on the subject. The honorable and learned senator, in arguing that a general provision as to copyright should cover all subsequent clauses, rested his argument on the foundation that marginal notes and, divisional headings were on the same plane. But, in view oi the Acts Interpretation Act, I ask honorable senators to assist me in adhering to the present form of the Bill, which, after consideration, I think will make for greater certainty in the law, and certainly make, as Senator Pearce has pointed out, for greater convenience on the part of those who, in their own interests, may have toconsult this measure.
Senator Sir JOSIAH SYMON (SouthAustralia). - I am quite aware that so far as the headings to parts of a Bill are concerned, they are regarded as dividing it into parts, but the marginal notes and headings have no more weight with a Court in construing the meaning of the general sections of an Act than the section fixing the date on which it came into operation! If we adopt the amendment we shall give the property we create, which is the copyright, a clear and definite expression to which all the incidents that we wish” to associate with property are attached. That might also be done by the alternative method suggested, and which’, I think, is the better of the two, of substituting a clause dealing with the matter before we deal with the question of infringement. Senator Keating has called to his aid “the Constitution Act.
– I did not, except in reply to Senator Millen.
– The honorable and learned senator said that a certain set of provisions in the Constitution Act deal with the Senate and another with the House of Representatives, but I remind him that there is also another set of provisions dealing with both.
– I said so.
– I am glad that my honorable and learned friend said one thing that appears to commend itself. For the sake of lucidity this matter should be dealt with immediately before we deal with! the question of infringement. In that way we shall define the property which is dealt with in the subsequent clause as the subject of infringement. I have no wish to press my amendment for the ^mission of the words “in a book “ if the Minister thinks that it would be better to deal with this matter in a subsequent clause expressly dealing with all subjects of copyright, and to follow that up by a provision for proceedings on infringement.
– I drew attention to this matter because it appeared to me that it was very important that there should be a simple and easy means of assigning the copyright provided for under clauses 21 and 22. Those clauses deal with the most difficult cases which will arise under this Bill, in which a kind of dual copyright is involved. It is particularly important also in view of the new clause inserted at the instance of Senator Millen. ‘ I understand that the Minister admits that “article “ is not covered by the definition of “ book,” and the honorable and learned senator proposes to amend the definition of “ book “ to cover “ article.” I would suggest that it is necessary ta put in a specific definition of the term “article.” because the question must, arise under the claims wilh which we have already dealt - What is an article contributed to a periodical ? Is a letterwritten bv any person to a newspaper and for which no payment is received, an article? I think it is. Any contribution sent to a newspaper and signed is a signed article, and the writer would be entitled to copyright in it.
– In an ordinary letter “To the. Editor”?
– Yes, and if such a letter were published in. some other newspaper, the writer of it might have a cause of action, against the proprietor of that newspaper. I foresee that it will lead to this: That in the majority of cases, when people send articles of any kind to a newspaper, they will have to state, in definite terms, that they do not claim copyright in their productions. In ninety-nine- cases out of a hundred, the writers of such articles would not desire to claim any copyright. The Minister suggests that we should pass this clause as it stands, and deal with the difficulty in the interpretation clause. If there were any species of copyright proposed to be given which it is not desired to make personal property, I could see no objection to the adoption of that course ; but when we propose to make every copyright given personal property, I do not see why we should not say so in one clause. There would then be no possibility of any difficulty arising in consequence of a matter for which copyright is provided being omitted from the clause. I notice that the term used in the first of the clauses dealing with infringement of copyright is “ any copyright conferred by this Act.”
– That appears subsequently to the provision with regard to copyright, in artistic works.
– I do not understand why it should be insisted upon that this clause should appear in this part of the Bill. Why should it not come immediately before the clause dealing with infringement, as Senator Symon has suggested? We should then lay. down, first of all, that copyright is personal property, then that it. can be assigned in certain ways, and we should next provide for penalties for its infringement. The illustration of the Constitution Act is entirely in favour of the adoption of that course. Where we can deal with a matter in a comprehensive way, desiring to make no differentiation, we should do so in one clause. An amendment of this nature would entirely meet the difficulty I pointed out, whilst I am not sure that an amendment of the definition of “ book “ would do so. I think we should need also a definition of the word “article,” as there might be great difficulty in defining exactly what an article means under this Bill.
Senator Sir JOSIAH SYMON (South Australia). - I should have been glad if Senator Keating had indicated the course he is prepared to take. I am sure the honorable and learned senator will feel, as I do, that, to a certain extent, I am criticising my own Bill. I do not wish that my honorable and learned friend should think that in yielding to any suggestion he is interfering with a work peculiarly his own. I am aware that he has given a very great deal of consideration to the measure, but I feel a paternal interest in it also.
– So do I.
– I have proposed the omission of the words “ in a book “ with a view to leaving it to Senator Keating, in conjunction with the draftsman, to frame a clause dealing with the difficulty which has been suggested, but if he is not prepared to do so, I shall ask leave to withdraw the amendment with a view to striking out the clause.
– I have asked the Committee to accept the clause, as it stands, for the reasons I have given.
– As the honorable andleamed senator is obstinate in the matter, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
– I ask the Committee now to negative the clause, with a view to having it re-inserted in another form later on.
Question - That the clause stand part of the Bill - put. The Committee divided -
Ayes … … … 16
Noes … … …9
Majority … … 7
Question so resolved in the affirmative.
– I do not intend to divide the Committee again on this clause, but it is open to the objection that it duplicates a provision of the Bill. Really, instead of having a creditable Bill, we shall have one which will be a perfect hash so far as its construction is concerned when it comes into operation.
Clause agreed to.
Clause 24 agreed to.
Clause 25 -
The owner of the copyright in a book, or of the performing right in a dramatic or musical work, or of the lecturing right in a lecture, may assign his right, either wholly or partially, and either generally or limited, to any particular place or period, and may grant any interest therein by licence ; but an assignment or grant shall not be valid unless it is in writing, signed by the owner of the right in respect of which it is made or granted.
Senator MILLEN (New South Wales).It appears to me that the pernicious system of duplication is going not only from division to division, but from clause to clause. The clause contains some new matter, but at the same time it is largely a duplication of clause 23. If I can draw any conclusion from recent events here, it is that the Minister has made up his mind not to regard any suggestion even when it is offered in the most friendly spirit, but simply, so far as he can, to adhere to the Bill, irrespective of its merits or demerits. If the Committee see fit to retain a duplication after it has been pointed out, and the Minister is quite satisfied to have an imperfect measure,, let the responsibilityrest with them.
– That is where we differ. I think it is more perfect asit stands.
– The Minister has a majority, who think with him.
– No - not think with him.
– The Minister has a majority, who do not think, but vote, with him. I quite recognise the difference between thinking and voting, seeing that a large number of those who voted just now were not here to think.
– The same argument applies to honorable senators on the other side. How many of them came into the Chamber who had not heard a word of the debate ?
– Is Senator Millen in order, sir, in insinuating that honorable senators vote differently from the way in which they think, or in saying that we are here asvoting; machines, and not to think for ourselves?
– When I am called to order, I should like to have my words correctly reported to you, sir, and not to be grossly exaggerated, as they have been in this case.
– I did not understand Senator Millen to say that honorable senators were voting machines, and I do not consider that lie was out of order in what he said.
– Clause 23 says that certain rights shall be personal property, and shall be capable of assignment and transmission by operation of law. That, I submit, is quite sufficient, but clause 25 goes on practically to repeat that provision, and to say that those rights can be transferred by operation of law, wholly or partially.
– Does it not deal with the method of assignment?
– When clause 23 says a person can assign personal property, he can exercise that right either wholly or partially, and it does not appear to me to be necessary to say in another clause what the ordinary operation of the law will allow him to do. If, however, the Committee is content to take the clauses as they are drafted, withoutreally considering whether they are necessary, and conduce to the simplicity of the measure, it is not discharging its duty in that high way in which I think it. ought to.
– It is only a matter of saying the same thing twice.
– Exactly, but why not sav it three times?
Clause agreed to.
Clause 26 -
Any second or subsequent edition of a book containing any alterations or additions shall be deemed to be a new book, but so as not to prejudice the right of any person to reproduce a former edition of the book, or any part thereof, after the expiration of the copyright in the former edition.
– This is a clause about which I hope Senator Givens will not merely vote, but th’ink.
– Not very long ago I saw the honorable and learned senator voting directly opposite to the way in which he thought.
– That was a very bad example, and not worthy of the spasmodic cheer with which it has just been applauded by Senator Keating. This clause does not raise the question of duplicating a provision of providing what the law already provides for, of repeating words ten or, it may be, fifty times in the same Bill, which the Minister seems to desire to do. It is one which ‘I think the Committee will see is vicious and. absurd in every possible way. I do not know whether it comes with the stamp of that hoary old Royal Commission of thirty years ago, or of the Bill which was introduced, only to die, five years ago; but it gets no credit and no support from either one or the other. What does it provide?
Any second or subsequent edition of a book containing any alterations or additions shall be deemed to be a new book.
If Senator Keating says the clause is a good one, allI can say is that he has not given to it that consideration which I should expect of him.
– Will the alteration of a comma be an alteration within the meaning of this clause?
– I should like to argue the question in a court of justice. We need not carry it quite so far as my honorable friend does’, but he has really spotted the defect, and made it glaring by means of his suggestion. There are two things”, however, which may happen. One is that if an author makes alterations of a comparatively unimportant character, it will give his work the character of a new book. The second is that there is no definition of what an edition is. An edition may consist of ten, twenty, forty, or fifty copies, and all that an author will have to do in order to evade what we have after considerable debate laid down, and so extend his copyright, is to publish a limited edition of his book, which will be rapidly exhausted, or make a few alterations of more or less substance, whereupon he will get a fresh lease of copyright in the book, and so go on for ever.
– Not in the original edition ?
– No. We all want the most improved and, of course, the latest edition of a book. The original edition of certain books possesses a particular value because some passages may be indecent or blasphemous, or for some other reason may have a particular attraction.
– Sometimes, because of a glaring defect.
– Yes. I shall mention two books which may be an exception to the rule I am pointing out. One is the celebrated translation of the
Arabian Nights, by Captain Burton, which has since teen published in various expurgated editions. The original edition, because of its prurient character, attained a considerable value, and probably it may be republished if called for. In the first edition of his History of New Zealand, Rusden libelled a man called Bryce, who had served in the Maori War, and who, in England, brought an action against him for the libel. He was successful, and the result was that the first edition was recalled, and subsequent editions were published without thelibellous paragraphs. With the exception of such cases as these, the first edition of a book is rarely, if ever, republished. Therefore, all that can be reproduced is the first edition. But what I am strongly opposed to is the empowering of an author to evade the period of copyright established by the Bill, and to secure for himself stepping-stones of different periods by making a few alterations in his book, or by publishing a limited edition. An edition depends upon the number which the author or the publisher desires to include in it.
– This clause would give him extended copyright, not in the original edition, but in a new edition.
– The ordinary reading public may not understand the difference between the editions of a book. We may have an unlimited series of copyrights in the same book, according to the different editions. That certainly ought not to exist if we are to have a fixed period of copyright.
– I do not know whether the honorable senator means that this provision is something unknown to the law, but I would point out that the effect of it is to provide that in the case of a new edition of a book copyright may be obtained in the new edition only. That is at present the law in England. Questions of great nicety have at times engaged the attention of the Courts as to what is or is not a new edition. Obviously there must be protection for new editions. For instance, a man maywrite a book of ahighly valuable and technical character, dealing, say, with wireless telegraphy Fiveyearslater he may write a second edition of that book containing a great deal of further information that he has secured during the interval. It is obvious that he should be able to secure for that new book copyright, which should be co-extensive with the copyright in a book published for the first time. With regard to the present condition of the law, we know that the state of affairs to which Senator Symon has referred exists. There has been no inconvenience arising out of it; in fact those persons who are more directlv interested have shown no sign of disapproval.
– Of course not; they are the interested persons.
– The public have never said that they are dissatisfied. The onus of proving that there is some necessity for altering the law as it exists in England, and here, rests with honorable senators opposite. This clause is a statement of the common law.
– No, it is not.
– Undoubtedly it is.
– Where does the Minister get that from ?
– Does Senator Symon say that there is no copyright in new editions ?
– Well, I am astounded ! I will quote a passage from Copinger’s ‘ Law of Copyright. At page 43he says -
Questions of great nicety and difficulty may arise as to how far a new edition of a work is a proper subject for copyright. A new edition of a book may be a reprint of the original edition, which does not entitle the author to a new term of copyright running from the new edition.
That is a statement of the common law. In every individual instance it will be for the Courts to determine whether the book in respect of which copyright is claimed is a new edition or is simply a reprint. Copinger goes on to say : -
Or it may be so enlarged and improved as to constitute in reality a new work; for example, a scientific work 20 or 30 years old may be comparatively worthless, owing to the progress of science in the interval ; but a new edition, particularly if it be the production of the original author, would be as valuable at a later period as the original edition of the book was at the time it was published. There are many courses which lie between the two extremes, and the difficulty would be to lay down any general rule as to what amount of additions, alterations, or new matter would entitle the second or new edition of a book to the privilege of copyright, or whether the copyright extends to the book as amended or improved, or is confined to the additions and improvements themselves, as distinguished from the rest of the book.
The Courts have determined in numbers of instances whether a particular book was a new edition or a reprint.
Honorable senators who care to look through the list of decisions upon the point will see that the general principles that have actuated the Court in coming to its decisions are pretty well stated by Copinger as follows : -
A few mere colorable alterations in the text, or the addition of a few unimportant notes, will not be enough to sustain copyright, as in a new work.
– But the Minister says that any alteration would make a new edition.
– I say nothing of the kind.
As Lord Kinloch said in Black v. Murray, to create copyright by alterations of the text, these must be extensive and substantial, practically making a new book.
The alterations and additions that must be made in a book to secure copyright for a second edition must be of the character laid down by the learned Judge in that case.
– But the Bill defines the character of the alterations.
– The sufficiency of the alterations mustbe determined by the Court. If any one contests the copyright the Court will hold that the additions or alterations must be extensive and substantial, and of such a character as to make it a new book altogether, instead of merely a reprint of an old one.
– Would the Court say that any alteration was an extensive and substantial one?
– What the Court would have to say under this clause is whether there was any alteration.
– The Court would have to go further than to ascertain whether there was an alteration. An alteration sufficient to secure copyright in a second edition has been held throughout a long series of cases to meansuch alterations as were substantial, and justified the securing of a new copyright.
– Then this clause simply enacts the present law
– Yes, it is the law at present, so far as Great Britain is concerned. There have been some cases where notes have been added to a book; it has been decided that copyright cannot subsist in such a case. Similarly in regard to a book the second edition of which was issued with an index. The Court has held that copyright should only extend to the index, and not to the book itself. The Court in every case would decide whether or not the alterations were substantial. A particular instance that occurs to my memory is, though I do not speak with certainty as to the details, the poem of Edward Fitzgerald, the translation of theRubaiyat of Omar Khayyam. Thatpoem passed through- four editions. I understand that the first edition only is at present obtainable in a cheap form. Many editions have been published of the first version, but I do not think that copyright has run out in the subsequent versions. (Consequently purchasers have to pay a little more for subsequent versions than for the first. There were alterations of a substantial character, sufficient to extend copyright to the subsequent editions.
– Has any Court decided that the later editions of the Rubaiyat are copyright?
– Those who would be likely to make any money out of reprinting the subsequent versions have evidently not thought it worth while to take the risk, recognising that they are still the subject of copyright. I could cite a number of cases in which the Courts have decided that they are the judges of whether or not alterations made in books are colorably so, that is, merely small, or are substantial enough to entitle a second edition to copyright.
- Senator Keating has taken a considerable amount of time to explain to us what the common law of England is in relation to new editions of books, but the point is whether this clause does not fail to carry out the views that he has expressed. He has laboured at some length the fact that in order to secure copyright in a second edition of a book the alterations and editions have to be extensive and substantial. But in this clause those important words are left out, and we are asked to enact that any alteration or addition shallbe sufficient to entitle a new edition to copyright. I will give one or two instances. Take any work of legal procedure, or a text book such as Archbold, or Bullen and Leake. The slightest alteration in such a book would make a new book of it under this clause.
– No, it would not; read the decisions.
– The English decisions are based upon the common law of England.
– They would guide the Courts in interpreting this clause.
– Then let us do away with the clause. If the common law of England is valid and incapable of being misunderstood, there is no necessity for the clause at all. I will give another instance which honorable senators will at once understand. Take a sheet of music. In writing a song, a composer may put in or leave out what are called optional notes. Under this clause a man could, by putting on the top or bottom lines of an already published sheet of music, optional notes, get an entirely new copyright. If it is intended simply to give copyright to a new edition in which substantial and extensive alterations are made, why not say so?
– I have no objection to the insertion, of the word ‘ ‘ substantial ‘ ‘ after the word “ any.”
– I think the clause is wholly unnecessary, but if it is thought desirable to make clear to those interested in copyright what the common law is, I should have no objection to the insertion of “substantial and extensive.”
– I do not think that “extensive” is as good as “substantial.”
– But Senator Keating himself quoted with approval the words “extensive and substantial,” which he says are used in the common law. The moment I express my willingness to adopt those words, he raises an objection. My view is that the whole clause had better be left out, because to insert it would render the Bill a farce.
– There is considerable force in the contention that the word “ any “ does not carry with it the idea that the alterations must be of a substantial character, and, therefore, might leave the Court no option. At the same time, I cannot see the force of the contention that the clause should be struck out. If a man published a very valuable work,and, a few years later, on some recent discovery which had been made, he brought out a revisededition, it would be a real hardship to deprive him of copyright in that edition.
– In such case a copyright would be given now, if the edition wereequivalent to a new book.
– The decision of the question whether the new edition was equivalent to a new book would, under the common law, rest with the Court, whereas Senator Keating desires to confer a statutory right; and, in my opinion, there is no objection to the proposal with the amendment suggested, because it would give the Court some discretion as to whether the alterations were substantial. With a view to afterwards inserting the words “extensive or substantial,” I move -
That the word “ any,” line 2, be left out.
Senator Sir JOSIAH SYMON (South Australia). - I shall not oppose the amendment, but I would point out that Senator Keating himself has conclusively shown that there is no necessity for the clause, which may prove embarrassing, and therefore had better be omitted. The Courts have decided, and will continue to decide, that where alterations are sufficiently substantial, and are bond fide, a new edition is to be regarded as a new book. No one can take any exception to that view, because it would be very unfair to a man, who practically remodels his work, to refuse him a copyright. Such an author makes use of the old frame- work of the ship, in order to produce what is practically a new vessel ; and the law of England, at this moment, is that a new edition, which is altered substantially in that way, is to be regarded as a new book.
– What is the objection to giving a statutory right?
– Because by this clause we shall limit the functions of the Courts. Senator Keating told us that this clause is inserted in order that the question may not be left to the Courts, but we know that the Courts will have to decide whether the alterations are extensive or substantial enough to constitute the work a new book.
– The clause does not tie the Courts down.
– Every provision which affects the common law is more or less a restriction of the common law. In the authority quoted by Senator Keating the expression “colourable” alteration is used, and unless some such word be inserted the Courts may say that they have no power - that they must only look at the question from the point of view of “ extensive “ or “substantial.”
– The word “colourable” was not used by a Judge, but by the text-writer.
– But Copinger is the great authority on which Senator Keating relies. Undoubtedly a colourable alteration, however extensive might lead to an evasion, and ought not to entitle a man to a fresh copyright; and we may withdraw that view from the consideration of the Court if we insert limiting words. The law undoubtedly is. that if the Court decides that a publication comes within the definition of a book, it is entitled to copyright; and, that being so, why insert this clause?
– Would that objection not apply to a great many provisions in the Bill?
– No ; copyright, as we understand it, is the creation of the Statute. The Judges, who do not give copyright, have to define what is a new took; and the Courts have decided that, in all fairness, a new edition, which has been altered to the extent I have indicated, is entitled to be considered a new book. But the question remains - What is an edition ? An author may publish a limited issue of 100 copies, and, five or ten years later, if the book becomes popular, he may make some extensive or substantial alterations, and publish another limited edition. The public ought to receive something in return for the copyright which they give, and there ought to be some definition of “edition,” or otherwise the public may be robbed of the consideration tq which they are entitled.
– What would the Courts under common law define as an edition ?
– The Courts have never given such a definition ; but I take it that an edition means a number of copies.
– The position would not be improved, from the honorable and learned senator’s point of view, if the clause were’ struck out.
– At any rate, the position would be no worse. Whether the clause be struck out or not. there ought to be a definition of “ edition.” The amendment is to introduce words which may or may not exhaustively cover the basis of the Court’s definition as to what is a new book. If the amendment does not exhaustively dover the basis, then it must be embarrassing, and may interfere either with the rights of authors, or the rights of the public.
Amendment agreed to.
Amendment (by Senator Pearce) proposed -
That after the word “ containing,’! line 2, the words “ extensive or substantial “ be inserted.
Senator CLEMONS (Tasmania). - I am not quite sure that it is desirable to insert the words “extensive or substantial.” “An author could make a mass of wholly irrelevant and immaterial alterations, which might fairly be called “extensive,” but which would not alter the scope or character of the book in any way. What I think we all have in contemplation are “substantial” alterations.
– That is the most important word. There is one case in which a single alteration was held to constitute a new edition.
– I agree that one alteration might be of more importance than whole pages of irrelevant matter ; and I am afraid that the amendment, as at present worded, might have the effect of defeating the object we have in view. The amendment might be made to read “extensive and substantial.”
– “Substantial” would be the better word ; to have both might be dangerous.
– Under the amendment, if the alteration were either “extensive” or “’ substantial,” the conditions would be complied with ; but we should not be satisfied if they were only extensive. I suggest that the word “and” should be used instead of “or,” though I do not feel certain that even then the amendment would be the best that could be devised.
– If we agree to use the word “substantial” only, I should like to know whether the clause would confer the right of an author to use a title which has already been used by another author for another book. The original copyright may have expired, and then any person might publish the book. But even while the copyright in the original edition subsists, if any substantial alteration is made, another writer could apparently get copyright and retain the same name for his book. Is that intended ?
Senator CLEMONS (Tasmania). - I suggest to Senator Pearce that it would be better to use the words “ material or substantial,” instead of the words “extensive or substantial.”
– A material alteration is a substantial alteration.
– “ Material” conveys the idea of relevance, whilst “ substantial “ does not.
– As Senator Keating indicated just now, an alteration of one word might be a material alteration, but most people would not regard it as a substantial alteration. The use of the word material will carry with it the idea of relevance, and there will be no harm in having the alternative of “ substantial.”
Senator PEARCE (Western Australia). - It seems to me that the use of the word extensive is undesirable, and I ask leave to amend the amendment by substituting the word “material” for the word “extensive.”
Amendment amended accordingly.
Senator KEATING (Tasmania- Honorary Minister). - Senator Macfarlane has raised the question of two persons using the same title for distinct books. The general law of copyright and this Bill do not touch that question. It was decided as far back as 1881, in the case of Dicks v. Yates, and the decision may be taken as final. Hinkson, in his recent work on copyright law, says that in this case -
It was held that the plaintiff had no right to sue for an infringement of copyright, and that it was clear that the public could not be misled into purchasing the defendant’s tale, in the belief that it was the same as that of the plaintiff. So that there was no ground for the interference of the Court on the principles applicable to trades marks, and the action ought to be dismissed with costs.
If one man brings out a book under a certain title, and it acquires a reputation which makes a great sale for it, and another brings out another book with the same, title, it is a question whether the second man is not liable to an action at common law for damages.
– Or there might be an order to restrain.
– If the circumstances are such that the public are misled into buying the second man’s book under the impression that it is the book published by the first man, the question of copyright does not arise. There is no question of copyright in the title of a book or of a newspaper ; but if, by the use of the same title, an author leads the public to believe that his book is the -production of another author, the author whose property is depreciated in value by the use of a similar title for a later book may have a common law action for damages, and so with a newspaper. I think that the word “substantial “ would meet all the circumstances ; but, as it’ appears to be the desire of the Committee to use the words “material or substantial,” I have no objection to the amendment. Perhaps the word “ extensive “ does not properly apply. The learned Judge who used it in the case to which I have referred may have had in his mind the circumstances of that particular case, in which extensive alteration might have had a good- deal of influence in determining the nature of the new book. MacGillivray, in writing on the law of copyright, refers to a case in which a Judge held that a single alteration in one line of a poem was sufficient to render a book a new book.
– If the copyright was in a poem, one alteration might be material.
– This is Mac.Gillivray’s note on the case referred to-
In Black v. Murray, Lord Deas was of opinion that the alteration of a single word in a poem was sufficient to give a new edition an independent copyright, inasmuch as the alteration was very important, and entirely altered the meaning of the line in which it was used. The other judges however, did not altogether agree in Lord Deas’ opinion, and it would seem that his Lordship stretched the law as to new editions too far.
In the circumstances, perhaps, we might not be well advised if we used the word “extensive.” Materiality and substantiality are, I think, the grounds on which a Court would act in determining whether dr not a new book was a new edition or a reprint.
– I am afraid that in this discussion we are to some extent losing sight of the interests of the public. The amendment now proposed will be directly in the interests of the author of a book. It will enable him to get what is practically an extended copyright of his work, and the public will have to put up with the reprint of an imperfect first edition, after the copyright in the first publication has run out. , ,
– The alterations mustbe material or substantial.
– Whatever words we put in, we shall make it easier for an author to get an extended copyright for a new edition. The Courts have held that a new edition, to be entitled to copyright, must be substantially a new work,, and’ various words have been, used, such as colourable, extensive, material, .and substantial, to define what is meant. Any words we insert here will be restrictive, because only the particular terms we use will then come into operation, and everything else will be excluded from the consideration of the Court. An author may publish a small first edition of his work, for which he will get a long term of copyright, and when it is about to run out he may produce a fresh edition with some substantial, alterations in it. Publishers who would be prepared in ordinary circumstances to issue the very latest improved edition of the work, would be confined to the publication of the first edition, as only the copyright of that edition would have run out. Why should not the best edition be given to the public, under such circumstances? Without this provision, an author during the term of the copyright of his work - and it would probably be to his interests to do so - might bring out fresh editions, subject to the term of the copyright of the first edition. If this provision is agreed to, when the copyright of the first edition runs out, publishers who desire to secure profit from the sale of the work, may flood the market with copies of the inferior first edition. I think that it might, perhaps, be better to limit the right of an author to secure copyright for a second edition. What is proposed is practically an extension of the term of the original copyright.
– Before dealing with this amendment it would be wise to consider the effect of the whole clause. The amendment would be a distinct improvement on the clause. Difficulties will arise, if this clause is passed, that are worthy of consideration. What is to be done in the case of a book or play which is the product of joint authors? A valuable work might be produced by two or more joint authors, and immediately after the first edition of, say, 1,000 copies is exhausted, one of them might make an important alteration in his part of the work and obtain a separate copyright. What then’ would become of the property of the other author in the original work ? The new edition, containing the alteration, might have the run of the market, and the other joint author in the original edition would have no copyright in the new edition.
– Or there might be three copyrights in the work at the same time.
– Why should not a man be given copyright if the alteration he makes is substantial?
– He would in such a case not only have copyright in the new work, but in the original edition published by himself and his collaborator.
– Under clause 20, if a book is written in distinct parts by different authors, each author is given copyright in his own part of the book.
– But clause 19 provides that where there are joint authors of a book, the copyright shall be the property of those joint authors. Suppose that two persons collaborate in writing a play - and the copyright of a play is sometimes exceedingly valuable - and that after a short period one of those persons makes a vast improvement or alteration in the play, if this clause is passed that person will be the only one given a copyright in the new version of the play, and the old one may be cast aside. We should not give any person the power to perpetrate an injustice of that kind.
– That is the law at present.
– That is no reason why we should not improve upon it.
– If we must be satisfied with the law as it stands at present, we might as well’ do away with all Parliaments. I beg leave to doubt that it is the law at present.
– Senator Symon and Senator Keating are agreed that it is.
– Judges have decided in certain cases that certain alterations are sufficient to make a book a new book, but each case depends on its merits’.
– I can see that under this clause as it stands, very serious injustice might be perpetrated. Take, for instance, the case of Gilbert and Sullivan’s operas. One person wrote the words and the other supplied the music of those operas. Suppose that one of them had been entitled,^ by making a substantial alteration, to the sole right of copyright in the new version, he would have been given the sole copyright in an opera which was in part the work of the other, and a very great injustice would have been done. I am not prepared at the present moment to suggest an amendment, but I think that the clause ought to be postponed in order to afford honorable senators an opportunity for further consideration.
– Suppose that after the sale of a copyright a quarrel takes place between an author and his publisher. Apparently, the author may be able to defraud the publisher by issuing a new edition of his book, with comparatively immaterial alterations in it. All things considered, the amendment of Senator Pearce appears to be better than the provision in the clause, but there is agood deal to be said in favour of not having the clause at all.
Senator KEATING (Tasmania- Honorary Minister). - In the main this is a codifying clause. It codifies, so to speak, the common law, and for the reasons set out in the cases cited I have no objection to the insertion of the words “material or substantial “ where Senator Pearce desires. The effect of the clause is to determine that when substantially a new book, although a second edition of a previous book, is published, it shall be entitled to copyright as a new book.
– It is not substantially a new book.
– Supposing that a man brings out a second edition of a work, and that he wants to get copyright in it. The law has to determine - “ Is this the same book as before, or are the alterations and additions so substantial and material as to make it for the purpose of copyright a new book?” If that question be decided in the affirmative, then the following provision in clause 18 will apply: -
The author of a book shall be the first owner of the copyright in the book.
The law will then ask - “ Who is the author of this book ? “ Obviously the man who was merely a collaborator in the first instance, and who has made alterations or additions, could not say that he was the author of the book. He would certainly be the author of the alterations. If the authors collaborated on such terms that they were joint authors, and got a joint copyright in the book, then the copyright in the new book, or second edition, would enure for them jointly.
– Nothing of the kind.
– That is the position. Because the second man could not say that he was the author of the book, but he could say that he was part author of the original book, and sole author of the alterations.
– Then he will be the only one entitled to copyright in the alteration?
– If the alterations be separable.
– That is what Senator Givens puts.
– Supposing that he has made additions, not alterations?
– If the additions, such as an index, be separable, or if they be notes on the text, severable from the remaining parts of the book, have a literary value, and can be the subject of copyright, he, as distinct from his collaborator in the . first instance, can acquire a copyright ip them. Take, for instance, a poem like Milton’s Paradise Lost. One man may publish that poem to-day with a set of notes, and acquires a copyright in the notes. Another man may publish the same poem with another set of notes, an introduction, or a commentary ; and in that added matter he alone has the copyright. So in the case referred to by Senator Givens, if the added matter be of such a character that it is separable from the original matter-
– That is a different case. I didnot mention that at all.
– It arose out of the honorable senator’s remarks from an interjection by Senator Millen. If the alterations be separable, or if the added matter be susceptible of copyright, then their author alone is entitled to copyright, but only in respect of them. But if the men have written originally on the principle that they are joint authors, who jointly hold the copyright, then I maintain that the author of an alteration cannot say that he is the author of the new book, and the copyright will enure for the collaborators. But if, on the other hand, the book be written in distinct parts by separate authors, and the name of each author be attached to the portion written by him, then under clause 20 he will acquire a separate copyright. I think there need be no fear of difficulty of the character suggested by Senator Givens.
– Will not the ordinary law that applies to property and commerce apply in this case? When two authors have written a book, it is their joint property, and I assume that no alteration of the book could be made unless under an agreement which protected the interests of both parties, as in a case of a partnership.
– One of the authors might die.
– In a case of common authorship, the personal representative of the deceased author might stand in his shoes.
-Would it not be better to make that clear?
– I do not think it needs to be made clear. I think we should land ourselves in a number of difficulties if we attempted to provide for cases of that character, when the rest of the Bill and the ordinary law in regard to property would settle everything.
Senator Sir JOSIAH SYMON (South Australia). - The clause will land some persons in a kind of Chinese puzzle. It would puzzle the celebrated Philadelphia lawyer. It is one thing to have decisions given by Judges in relation to the particular facts of each case; but it is another thing to lay down a hard-and-fast rule in a Statute, and ask the Judges to give effect to it in the various complex connexions which it has with other parts of the subject we are legislating about, such as those called attention to by Senator Givens. I cannot say whether he is right or not, or what the consequences will be. But the clause lays down a hard-and-fast rule of law to facilitate the operations of authors and publishers in getting; an extended right to the detriment of the reader and the general community. I make that remark because of Senator Keating’s observation that the clause codifies the law. It does to a certain extent codify the law, but it does so with a limitation against the community, and an extension in favour of authors and publishers. The question is not whether we are giving a copyright to a new edition, but that we are anxious to give a copyright to what is in substance and in good faith a new book. Senator Keating read, quite properly, the decisions which have been given in relation to particular cases which happened to arise, and which had to be decided according to their own circumstances. That cannot be better illustrated than by the instance he quoted just now from the Scotch, case, in which Lord Deas said that the alteration was such1 as to constitute a new book. The other Judges disagreed with him, and said that in their opinion it had not that effect, and that it would be improper to strain the law to that extent. Therefore, when honorable senators are told, and properly told, that Judges have decided various things in different cases, they must not assume that that is laving down a rigid rule of law, which we are to embody as nearly as we can in an Act of Parliament. It merely means that in the circumstances of a particular case the Judges came to a con clusion which they thought was fair and just. They have held that in certain cases there may- be such alteration’s, extensive and substantial, and not colourable, as would constitute the production of a new book, as though it had been written from cover to cover, andi no part of it had previously appeared. The essence of their view in the particular case of Black v. Murray, was expressed by Lord Kinloch. when he said that -
To create a copyright by alterations of the text these must be extensive and substantial, practically making a new book.
What are we asked to do? With Senator Pearce’s amendment, this clause will provide that a work with substantial or material alterations or additions shall be deemed a new book. The Judges say that before a man can limit the right of the reading public by getting a new copyright, he must show such alterations and additions as in the judgment of fair men would entitle, the work to be regarded as a new book. This clause, if amended as proposed, will repeal that law ; therefore, it is not a codification of the law. It may lead us into great difficulty, and produce a crop of litigation. Just as I warn people not to go to law, so I warn the Committee to avoid putting in the measure a clause which is likely to encourage unnecessary litigation. I trust that Senator Keating will accede to the excellent suggestion of Senator Givens, in order that a full opportunity may be given to us to see that the clause will carry out the intention of its framers. It is very difficult to embody in an Act of Parliament a rigid rule which is supposed to give effect to a variety of decisions, because each case depends on its own circumstances.
Senator PEARCE (Western Australia). - Although Senator Symon encourages Senator Givens, he does so from a different stand-point. He does not regard Senator Givens’ contention as being tenable, or his statement of possibilities as being sound. Senator Symon aims, not at the postponement of the clause, but at the destruction of it. I wish to discuss for a few moments, not its legal aspect, but its practical application. Suppose , that Senator Symon’s contention were correct, and a new edition of a book were brought out, in which the alterations were of such a character that it was practically a new work. This clause having become law, the author of the edition would be able to get copyright. What would happen? First of all, the older editions of the book would come into competition with the new edition. The new edition would be the monopoly of one publisher, but the old edition could be published’ by anybody. That competition would prevent any ill effects that might flow from the author of the alterations obtaining copyright in his work.
– . It would be saying to the public, “ If you want the best edition of this book, you must pay for it.”
– That would prove that the alterations were of such a character as practically to constitute it a new* book.
– The only point is whether the matter can be defined in a clause, or should be left to the Judges.
– The point was originally raised by Senator Drake, who believed that harm might Le inflicted on the reading public. My contention is that, whatever the legal aspect may be, the practical effect will be that only such alterations as are of such a substantial character as practically to constitute a new book will make any real difference. If the alterations are not important, the competition of new issues of the first edition of the book will render copyright in the second edition harmless.
– Would not re-issues of the first edition be a fraud on the public?
– No; because the public would Le able to get the new edition if they chose. The very fact that a higher price might be charged for a new and improved edition wouldbe proof that, in the opinion, of the public, the book was substantially altered; and, if that were so, the author of the alterations should be able to get copyright.
– It is not proposed to take that right away from him.
– Thatbrings us back to the point whether we should put this clause in the Bill, or leave the matter to the operation of the common law.
– The point is this : Should we lay down a hard and fast rule that alterations and additions can make an old book a new book, or should we leave it to the Judges to say whether the material alterations are such as in fairness should entitle it to be regarded as a new book.
– I think the better plan is to pass the clause. It is better to make a statutory provision, seeing that no harm could arise, because the competition ofold editions will safeguard the public. It is the interest of the public we have to regard. This clause does not deal with the point raised by Senator Givens.
– The honorable senator is now standing up for the propertyowner.
– Whenever the propertyowner has a just case there will always be members of my party who will stand up for him. The point raised by Senator Givens is dealt with -in other clauses. Senator Keating has advanced an argument which’ I feel sure would receive consideration from any Court ; because in equity, surely, the rights of joint authors would have to be regarded. The rights of joint authors in their property are protected, and there is nothing in the clause we are dealing with to take them away. We might pass the clause, and if, subsequently, Senator Givens can think of a desirable amendment, it can be recommitted. So far he has not submitted any amendment, or shown that the clause needs amendment. His points are such as ought to have been raised when we were considering clauses 18 to 20.
Senator GIVENS (Queensland).- Senator Pearce argues that my suggestion ought to have been dealt with upon clauses 18 to 20. I differ from him. The interests of joint authors are properly safeguarded in those clauses. It is here where we are creating a new rightthat the interests of joint authors are not considered: As we are creating a new right bv clause 26, this is the proper point at which to safeguard any new or old interests that may be endangered. Although Senator Pearce disclaimed any authority from a legal aspect, he laid down the law in a most dogmatic fashion. Clause 19 can be understood by any one who can read ordinary English. It gives the joint authors of any book or dramatic or musical work joint property. Clause 20 does the same. Clause 26, with which we are dealing, gives the author of any material or substantial alteration copyright in what is defined by this clause as a new work.
-No, it gives copyright in respect of a new edition.
– Is there a quorum present, Mr. Chairman?[Quorum formed.]
– My object in asking for the postponement of the consideration of this clause is to have some means devised to meet the case of the joint authorship of a book, which may be subsequently altered in some substantial or material way-
– Standing order No. 198, which deals with the committal and consideration of Bills in Committee, provides -
Any clause may be postponed, unless the same bas already been amended.
The clause under consideration has been amended, ‘and, therefore, ‘ the desire of Senator Givens can be carried out only by a reconsideration or by a recommittal.
Senator KEATING (Tasmania- Honorary Minister). - I intended, when Senator Givens had concluded his remarks, to offer no objection whatever to the recommittal of the clause, if any honorable senator should desire to give effect to the wish of Senator Givens, or to meet the criticism levelled at the clause from other quarters. What I mean is that I do not take any responsibility for submitting any alteration of the clause, because, for the reasons I have already stated, I do not think that any alteration is needed.
Senator GIVENS (Queensland). - I was under the impression that a clause could be postponed at any time before it had been finally passed ; but, of course, I bow to the ruling of the Chair. My desire is to insert a new clause to provide that in the case of joint authorship, one author may not have power, by making any substantial or material, alteration, to obtain copyright in a new and revised production, to the prejudice of the other author. Any alteration, no matter how substantial or material, would be based on the work of. the joint authors, and, if the new work were to entirely supersede the old one, the author, who had not made the alteration, would have no property in the later book.
– My intimation applies to a new clause of the character mentioned.
– I understand from the statement of Senator Keating that, whilst he intends to adhere to the clause as it is, he will not offer any objection at a later stage, if a recommittal be asked for.
– That is so.
– I assume, also, that Senator Keating is taking it for granted that the amendment consequential on the carrying of Senator Pearce’s amendment, will be adopted.
Amendment agreed to.
Senator MACFARLANE (Tasmania). - I was not quite satisfied with the answer given by the Minister when I pointed out the possibility of several books being published under the same title ; and in order to protect the public I move -
That after the word “ additions,” line ,2, the words “ and carrying an amended title,” be inserted.
Unless’ an. amendment of this kind be adopted, different writers may publish variations of a popular work, bearing the original title.
– The public will have the choice of editions.
– If a title does not carry copyright under the circumstances, and apparently it does not, an injustice may be done to the public.
Senator KEATING (Tasmania- Honorary Minister). - This is a most serious and far-reaching amendment, which appears to be fraught with a great deal of danger. Works may have earned great repute, and ba known by their title so well as to give the latter considerable value. There are, for instance, such books as Darwin’s Origin of Species, and Seeley’s Expansion of England; and if, in either case, on the issue of a subsequent edition, the title had to be altered, it is quite conceivable that the alteration might be of such a character as to a great extent to deprive the owner of the copyright of the benefits which he might expect. If, on the other hand, the alteration were so insignificant that the owner of -the copyright might retain all the advantages, the public would be in no different position from that at present. The book, Copinger’s Law of Copyright, from which I quoted: this morning, is, I notice, the fourth edition by J. M. E aston; and it “ may be that other editors issued earlier editions. Senator Clemons referred to Bullen and Leake on Precedents of Pleading which book has run through a large number of editions, some of great value, and yet older editions are of much more value in New South Wales and Tasmania than the later editions, owing to the procedure dealt with being more in conformity with the -procedure in those
States. This morning, again, I sent out for Maxwell’s Interpretation of Statutes, but, to my disappointment, I was given the edition of 1875, which appears to have been the first, the book having since run into about fourteen editions. All these are known as standard works by their very titles, and the question of the edition does not, I think, in any way affect the public, except in so far as the desire is to be supplied with the latest edition.
– The public ask for the latest edition.
– Naturally that is so, except in such cases as that of the Precedents of Pleading I have already referred to.
– The editions maybe by different writers.
– Many editions of law-books are by different writers. A law-book may be edited by men, long after the original author is dead. For example, I think I have a Chitty on Contracts, of the date 1829, and, of course, nobody would imagine that the bulky tome under that name now in use was prepared by the author of the first edition. Ancient first editions, as a rule, are of no value in. the case of law-books, except historically, and usually the work of the original author represented in the latest editions is very small. I think the amendment would seriously interfere with the rights of authors, and others who are interested in books bearing names which carry a great deal of significance in the minds of that portion of the public concerned with the subjects dealt with. Under the circumstances, I must oppose the amendment.
Senator MILLEN (New South Wales). -I see some little difficulty in giving legislative effect, to the commendable idea suggested by Senator Macfarlane, though the idea itself gains some force from the remarks of the Minister, who points out that a title itself may be of value. As the Bill stands, a writer, who had published a work under a certain title, and disposed of the copyright to a publisher, might claim to use the same title again for a revised edition of the work. It might be difficult to prove that it was legally a fraud, but there can be no doubt that morally he would be defrauding the publisher of a portion of the value of the property which he had sold tq him. To that extent I am in sympathy with the amendment suggested by Senator Macfarlane, but
I see that some complications and difficulties are presented on the other side. I should be inclined to support the amendment but for the assurance of the Minister that if, on further consideration, it is thought desirable to recommit the clause, he will offer no objection.
Senator CLEMONS (Tasmania). - I should like to remind Senator Keating that in the definition clause we provide that “ book “ shall include music. I am not at all certain that if we pass this clause as it stands, or even with the amendment proposed by Senator Pearce, it would cover, for instance, the publication of a song transposed to another key.
– Or with a little alteration in harmony.
– I am concerned in connexion with this Copyright Bill for the protection of musical composers. I believe that there is no class of authors in this or in any other community who have suffered so much from what might be called piracy as have musical composers.
– The honorable and learned senator will find that, under clause 13, the right is given in the case of a musical work “to make any new adaptation, transposition, arrangement, or setting of it, or of any -part of it in any notation.”
– I have read that, but even if we put in the words “material or substantial,” I am not quite sure that the poor musical composer will be given protection. Dealing with Senator Macfarlane’s proposed amendment, a musical composer publishes a song with a particular title; the merit of the song is in the music, but it. is possible that the public are attracted by the title, and if we permit the title to be amended we shall get into difficulties again.
– There would have to be a material alteration. *
– The title of the song might be amended, whilst the music would remain the same.
– That might altogether destroy the identity of the song.
– I am afraid that the amendment suggested by Senator Macfarlane will be dangerous to the interests of musical composers, and I therefore hesitate to support it. Whilst I am prepared to support Senator Pearce’s amendment as an improvement on the clause, I think we should do still better if we struck the clause out altogether. That would not embarrass the Minister, as he couldrecommit the Bill for the insertion of a new clause, which would give effect to what he desires without including any provision to which the Committee objects. It appears to me that in this clause we are practically giving a right to an author to a perpetual copyright, or a right to a perpetual lease or renewal of a copyright. Much as I desire to safeguard the interests of authors, I suggest that the rights of the public might also be considered. For these reasons, and in no spirit of animosity towards the Bill, I am satisfied that I should vote against the clause.
Senator GIVENS (Queensland). - An author may write a book and sell his copyright in it to a firm of publishers. They may have published no more than one edition of 1,000 copies, when the author may make materialor substantial alterations and additions to the book, and it appears to me that under this clause he would have the right to sell the copyright in the new book to another set of publishers.
– Does not the honorable senator think that the original publishers will protect themselves by a contract with the author?
– I understand that it is impossible to contract oneself outside the law, and that a contract made outside the law is not binding.
– If the author contracted with his publishers not to issue a new edition, he would be unable to do so.
– But this clause provides that if a material or substantial alteration is made, it is to be regarded, not as a new edition, but as- a new book. The more I hear the clause debated, the more satisfied I am that it is surrounded with difficulties. It would be better, I think, for the time being to strike it out. This clause would give to an author the right to sell what would be only technically a new book to another publisher, to the prejudice of the publisher to whom he sold the copyright of his original production.
Senator DRAKE (Queensland).- The difficulty pointed out by Senator Givens no doubt exists under this clause as it is drawn. The proper remedy to meet it is, I think, to provide that the copyright of the new edition shall only be conferred on the holder of the copyright in the original edition.
– He would be able to impose his own conditions then.
SenatorDRAKE., - Senator Millen has referred to a case in which an author does not part with the copyright in his book, but whilst an edition is going through the press he makes an alteration which entitles him, to an extended copyright, and he puts the publication of the new edition into the hands of a different publisher. That would be distinctly a fraud on the first publisher. I agree with the contention of Senator Macfarlane, and I shall vote for the amendment. I think it is most desirable that we should have as much distinction as possible between different editions if this is to be the law. There can be no doubt that this provision will enable authors and publishers to evade the principal provision of the law with regard to the term of copyright. It will enable them to get practically perpetual copyright for a work by bringing out different editions from time to time, and securing, the full term of copyright for the new edition. It has been contended by Senator Pearce that this provision is rendered comparativelyharmless by the subsequent clause; which provides for free publication of the first edition, but I think that that, is a most pernicious thing, and will afford no protection whatever to the public. If there is any justification for an extended term of copyright, it must be On the ground that the new edition is an improvement on the first. Generally the object of our laws should be to bring the improved edition of a, book within the reach of the public, and without infringing any rights, to as far as possible suppress the first and inferior edition. Senator Pearce contends that there will be a competition which will prevent the holder of the extended copyright getting too high a price ‘for his work.
– That is the sort of competition which is sometimes called unfair.
– It is the competition between the big and the little purse. The well-to-do man will be able to secure the later edition at the higher price, to the satisfaction of the author and the publisher, whilst the inferior edition will be sold cheaply to the mass of the people. I do not think that is a result which we need be particularly proud of. The Minister has referred to legal text-books, and there can be no doubt that in respect of them there is practically perpetual copyright, but that does no great harm, because they are circulated amongst professional men, who know exactly what they are buying. We are here dealing with all kinds of books ; and in most cases people, in buying a book, do not look to see whether what they get is the first, second, or third edition of the work. I take the case of a man who has written a medical treatise, laying down rules of treatment for a particular disease. After a long practice he finds that he has made mistakes, and desires to substitute some improved treatment. He might be sufficiently courageous and honest to say, in a new edition of his work, “ I recommended such and such treatment in a former edition, but having found that that ‘is not the best treatment, I now recommend a different treatment.” On the other hand, he might not do so. He is to be given an extended copyright of the second edition ot His work, going, perhaps-, twenty years beyond the original copyright, and Senator Pearce contends that he will not be able to get too high a price for the amended edition of his work because the first edition, which advises a treatment that is manifestly wrong, is put on the market in competition with it. That would be a most undesirable state of affairs. There would be a “kill ‘em” edition and a “cure em” edition, and the general public would be given an opportunity to purchase the “kill ‘em” edition. I think that some provision should” be made in such a case to prevent the further publication of the first edition of the book. We should, I think, provide that an extended copyright in a new book shall only- be given to the holder ot the copyright of the first edition, and that the first edition shall not lie published after the new work comes out.
Senator KEATING (Tasmania- Honorary Minister). - I must ask the Committee to assist me in making a little more progress. I pointed out some time ago that I should have no objection, to a recommittal of the clause, and in the interval honorable senators who have since addressed themselves to it will have an opportunity to endeavour to put their ideas into some shape for inclusion in the Bill. Senator Drake has suggested that we should limit the copyright in a subsequent edition of a book to the holder of the copyright in the first edition. That would be absolutely impracticable. In his argument he said, in effect, “ It mav be all right to reserve for legal text-books something in the nature of a per petual copyright, because they are only dealt with by men who are interested in the subject-matter.” The same remark applies equally to a medical work, and largely to a mathematical work; in fact, it applies to nearly all branches of science and knowledge. The question of copyright is of more value in connexion with these books than in connexion with the more ephemeral literature. Let me point out how it would be impracticable to give to the first owner of the copyright or his assignee the copyrights in subsequent editions. A few moments ago I referred to a well-known legal text-book, called Chitty on Contracts. The edition I hold in my hand is the thirteenth, which was published in 1896, and there have been subsequent editions. In a note on the back of the title-page I read. -
The first and second editions of this work were brought out in 1828 and 1834 respectively, by Mr. Joseph Chitty, of the Middle Temple (the compiler of Chitty’s Statutes of Practical Utility),
Why, in respect of the third edition; should the holder of the copyright in respect to the first and second editions, another man, get the copyright ? The note continues -
The subsequent editions, up to the eleventh inclusive, were brought out by His Honour Judge J. A. Russell, Q.C., between 1850 and 1881.
It will be seen that the man who was adding value to the book for thirty-one years, and using his brains and energy to produce a standard text-book in conformity with the law as known at the time, was quite a different person from Mr. Chitty -
The twelfth was brought out by the present editor and Sir William Geary in 1890.
The title of the book has been retained all these years. Many students get the work; many practitioners use it ; many Judges may refer to it in determining cases, and perhaps they do not know for the moment who is the editor of the book at the time, or the man in whom the copyright is vested. In the case of the thirteenth edition, the editor, Mr. J. J. Lel y may be entitled to the copyright.
– I do not think so. I expect that the booksellers have got the copyright.
- Mr. Lely may have made an arrangement with his publishers at the time. This shows the impracticability of reserving to the original holder of the copyright or to his assignee for all time the copyrights in subsequent editions. However, these are ail matters which can be dealt with at the recommittal stage. If Senator Givens desires to give effect to his ideas I shall have no objection at that stage to him proposing the insertion of a provision to follow this clause.
Senator DRAKE (Queensland).- I can hardly follow Senator Keating. What he has told us about Chitty on Contracts gives us no insight as to who is the author of the copyright. Probably it is held by the booksellers.
– It is not in Joseph Chitty, who died years ago, or in any representative of his.
– Very likely the copyright was taken out in his name, and assigned immediately to a firm of booksellers, and it is the owner of the copyright who has been getting the extension for the additions from time to time. Senator Givens’ objection, towhich the Minister’s answer seems to give a good deal of weight, is that under this clause it will be possible for a man to come along and get a copyright in an edition of another man’s work. If that is what the Bill means, the clause ought to be struck out at once. I had no idea that the Government contemplated that the copyright in a new edition could be granted to any one who was not the holder of the copyright in the first edition. It would mean a system of legalised piracy and nothing else.
– I am not quite satisfied as to whom Senator Macfarlane desires to protect by his amendment. Assuming that a very popular work has had a considerable run, we desire by our legislation to afford an inducement to the author to amend the work if he thinks fit, by elaboration, improvement, or correction. We wish to protect him in any further property which he may create, with regard to that work. Whom does Senator Macfarlane desire to protect by compelling an author to alter the title of his work ?
– I desire to enable the public to know what they buy, by providing for an amendment of the title of a book when it is materially altered.
– The public who have acquired a knowledge of a book are to be protected by being deceived with regard to a book which contains alterations, substantial though they may be, and which bears a new title. Will not that tend to blindfold the public rather than to protect them ?
– The clause says “ a new book.”
– That point will have to be determined by the Court. It seems inevitable that the new book will be sold at a higher price than the old one.
– That does not follow.
– If the copyright in the old book has expired, and a new proprietorship is established in regard to new matter,will not the old book be cheaper than the new one? There will be no copyright topay for.
– Not necessarily.
– The chances are ninety-nine to one that that will be the case. If that is what, is desired I cannot see how any possible advantage can accrue to the public. Possibly Senator Millen may be able to enlighten me.
– I have given up all hope of trying to do so.
Question - That the words “ and carrying an amended title “ proposed to be inserted be inserted - put. The Committee divided.
Majority … … 9
Question so resolved in the negative.
Senator GIVENS (Queensland).- Perhaps I can suggest an amendment which may remove the objections of some honorable senators. Under the provision as it stands, any person may make a substantial and material alteration in a book, and get a copyright therein to the prejudice of its author. The author of a “book may sell for a fair value to one set of publishers the copyright therein ; but afterwards, by introducing material and substantial alterations, he may create a technically new book, and his copyright therein he can sell to another set of publishers, to the prejudice of the publishers of the original edition.’ Then, again, there is the case of a Look which is the property of joint authors. I think it would get over all these difficulties if we were to insert an amendment after the word “ book “-
And the copyright in the same shall be the property of the owner of the copyright in the former edition.
If that amendment be inserted, no person will have the power to pirate the work of an author by improving and amending it, and to copyright it without his consent. Again, no person or author could get a copyright in a technically new book, to the prejudice of the holder of the original copyright. With this amendment, the property of joint authors would be protected in the case of a substantial and material alteration made by one of them.
Senator CLEMONS (Tasmania).- I have a previous amendment to propose. I move -
That the word “shall,” line 2, be left out, with a view to insert in lieu thereof the words “ may if the Court in any proceedings ‘for infringement think fit.”
The effect of that amendment will be that we shall fall into accord with the common law. I will not amplify the point, because we have taken some precautions already by the insertion of the words “ material or substantial.” But I still think that some modification is required, and this amendment will give to the Court that discretion which it should have. We shall indicate what ought to be the material points to be considered, and having given the Court that latitude, I think we shall have improved the Bill.
– There seems to have been a great ,deal of hair-splitting in connexion with this clause. During the discussion I have occasionally wondered whether I was sitting in a Legislative chamber or in a Court of Justice, where advocates were trying, from their briefs, to make out the best case for their clients. It appears to me, as a layman, that the clause is quite sufficient as it stands. Senator Pearce’s amendment has been carried, but notwithstanding, if a dispute arose as to whether the additions made to the book were of a substantial character, the case would have to be referred to a Court. It would be for the Judges to say whether the book was so altered as to entitle it to an. extension of copyright. Senator Clemons’ amendment, so. far as I can see, does not make the clause any more effective.
Senator Sir JOSIAH SYMON (South Australia). - With a view to show my honorable friend who has just resumed his seat that there is no particular hair-splitting, I will remind him of what the real position is. Nobody asserts that a new edition of a publication is, or ought to be, entitled to fresh copyright. No new edition, merely as such, is, or ought to be, entitled to a fresh period of copyright. No one asserts that a fresh issue of a publication, with additions and alterations, is simply on that account entitled to a fresh period of copyright. No Judge has ever yet decided. that. What has been decided is that if there is a new issue of an old publication already enjoying copyright, and the Court; is of opinion, first, that substantial and extensive alterations have been made in it, and, secondly, that those alterations are of such a character that in the judgment of the Court it is fair and just that it should be so treated, the new publication may be regarded as a new book, and be entitled to fresh copyright. Two things are necessary in order to give a right to a new period of copyright. One is that the Court shall find that there axe extensive material and substantial alterations. The second is that those alterations are of such a character as to make it practically a new book. This clause relates to the first of those condi- tions. It says that it will be sufficient if the Court finds that substantial alterations have been made. No one can assert that a new edition is entitled to copyright as such. That would be a monstrous thing to say. But where the alterations are of such a character that they practically make the work a new book it is fair that it should be so regarded. This Bill, in the interests of authors, publishers, and the reading public, prevents the Court from granting the concession of extended copyright, unless the alterations made are of such a character as to make it practically a new book. That is the object of the amendment.
– The Court is instructed that a new edition shall not be regarded as a new book unless the alterations are material.
– Under the present state of the law the Judges have to find two things before a man is entitled to a, new period of copyright. One is that the alterations made are substantial and extensive, and the other is that they are of such a character as to warrant the Court in regarding the publication as new. We take away the whole discretion of the Court if we apply a rigid rule, and say that a new edition shall have copyright extended to it if it simply contains alterations. I say that the matter ought to be left to the Court. Senator Keating says that this is a codifying of the law. It is not. It is taking away the power of the Courts to decide these cases on their merits. It is narrowing the law against the public, and enlarging it in favour of the owners of copyright. That is unfair. I do not pledge myself to the terms of Senator demons’amendment. That is a matter for the Minister and the draftsman. But I say that in substance the amendment is right. It does what Senator Keating really desires to do, and what I desire. It leaves the Court to find two things - alteration and materiality, plus the fact that the alterations are of such a character as to make the book a new one. I say that we should not take away one leg upon which the law stands. The Court should still look to materiality and substantiality as allowing it to grant extended copyright. Otherwise the Court will say, “We cannot go into the question of whether this book is worthy of being called a new book, because the Legislature has said imperatively that it is. All that we have to say is that material alterations have been made, and we are precluded from saying any more.” If that is what we want to do let us say so. But that is not in accordance with the decisions in recorded cases. The best illustration that has been given is that of the Scotch case, where the Judge treated as a material and substantial alteration entitling a poem to a fresh period of copyright what other Judges said ought not to be so regarded.
– The honorable and learned senator has rather enlarged his view since this morning.
– I have been thinking it over in the interval. The decisions which have been referred to are not common law. They are the results of a body of cases which have been determined on their merits. A decision in one case givenaccording to the facts may be no guide to a decision in another case. We have to avail ourselves of principles laid down as far as we can.
– Does not the clause as it stands provide that the alterations shall be such as entitle the new edition to be regarded as a new book?
– No; all that is left to the Court to find is whether there are material or substantial alterations.
– Which make it worthy of being regarded as new.
– No. If Senator Dobson were dealing with this matter Before a Court, he would contend that all the Court had to do was to ascertain whether a material or substantial alteration had been made, and, if that finding was arrivedat, that the publication should be deemed a new book.
– Whereas in the other case the Court would have a discretion. Could the Court find, under this clause, that a book was not worthy to be called a new book, although it contained a substantial alteration?
- Senator Keating has told us of a case where a Judge found that one alteration in a poem constituted a book a new book, though the other Judges, while they admitted that the new line was important, because it changed the meaning, held that the alteration was not so substantial as to justify them in so regarding it.
– Then SenatorClemon’s amendment is necessary ?
Senator KEATING (Tasmania- Honorary Minister). - I am sorry that Senator Stewart and Senator Symon were not here about an hour ago, when I indicated that if the clause were passed with the amendment proposed by Senator Pearce, I should have no objection to it being recommitted if so desired. If I were to address myself to the amendment now I should ask the Committee not to accept it. But I have not the words of the amendment before me, and I must repeat in the form of a protest what Ihave already put before honorable senators as a request. I must protest against honorable senators submitting amendments at the table without some notice on a Bill of this character.
– The Minister will not give another opportunity, seeing that he resists an appeal for a postponement.
– The Bill was circulated some weeks ago, and the usual and proper course is to give notice of amendments so that every honorable senator may have an opportunity to fully consider them as well as the original clauses,
– May we not move amendments without notice?
– I do not say that ; but the amendments which have been moved are such as could have been given notice of and circulated. Although I have not the terms of the amendment before me, I take it that the intention is to give effect to the principle that in determining whether or not a new edition shall be entitled to copyright, the Judge shall decide not only whether the alterations or additions are material or substantial, or both, but whether the result, the sum total, is in the opinion of the Court a production on which it is desirable copyright shall be granted. This proposal, in my opinion, is out of harmony with the English law.
– It is in entire harmony with the English law.
– The amendment has just been drawn by Senator Clemons, and I submit that there may be a pardonable difference of opinion on the point.
– The amendment merely expresses what the Minister himself said is already the law.
– No. In dealing with this subject Copinger, at page 44, says - it is immaterial whether the new edition is produced by condensing, expanding, correcting, re-writing, or otherwise altering the original work ; or by introducing notes, citations, or other additions. Nor is it essential that the new edition shall be an improvement on the old, the sole question is whether it is substantially different.
– Will the Minister read what Lord Kinloch says?
– On the same page Copinger says -
As Lord Kinloch said, in Black v. Murray, to create a copyright by alterations of the text, these must be extensive and substantial, practically makinga new book.
In some of the other authorities I have read, I notice that the Judges have refused altogether to consider whether the effect of the alterations or additions is to provide an improved production ; they have refused to consider any further question than whether there is a material or substantial alteration, either by addition, subtraction, or otherwise.
– There may be differ ent degrees of alterations which everybody can agree are substantial.
– These are the only conditions to which the Judges refer, according to Copinger. As I promised, I shall not raise the slightest objection to a recommittal of the clause if Senator Givens and other honorable senators desire to submit amendments. Under the circumstances, I am justified, therefore, in asking the Committee to adhere to the clause as it stands, and to assist me in the progress of this measure.
Senator MILLEN (New South Wales). - I take strong exception to the remarks with which the Minister commenced his latest address to the Committee. The honorable senator reprimanded honorable senators for not having circulated notice of amendments in order that he might consider them. But I ask any one with the slightest knowledge of Committee work, whether it is always possible to do so? In the present case the amendment has been suggested largely as the result of discussion on a previous amendment ; and to say that we are not within our rights, or are not acting in a proper businesslike way in submitting amendments which we consider necessary under these circumstances, is an utter absurdity. What the Minister’s claim amounts to is that when he, in consultation with the Parliamentary Draftsman, has (prepared and submitted a Bill no one is to have the audacity to lay, a finger on it. It is a strange doctrine that infallibility rests in the particular draftsman who prepares the measures which the Minister submits. The very fact that the Minister has agreed to one amendment shows that the Committee are doing good work, if we may accept the Minister’s authority at all on the point.
– Are honorable senators opposite afraid of allowing the Committee to see the effect of the amendment?
– Senator Pearce has moved an amendment which was given to him by some one else.
– The amendment referred to by Senator* Clemons was refused by the Minister when suggested from this side, but was accepted when submitted by Senator Pearce.
– That is no.t correct.
– The records of the Senate will show that it is correct. That amendment was declined when moved from this side, but after Senator Pearce had walked down, and had a chat with the Minister, it was accepted from the other side. I have no desire to refer to these matters, but when I am told that what I say is incorrect, it is time for me to protest. Everything said in support of Senator Clemons’ amendment, with which I agree, is really an argument for the elimination of the clause ; every amendment brings us back step by step to the common law practice as described by Senator Keating himself. We are all seeking to achieve that which would exist without the clause, and yet, because this provision appears in the Bill, there is some hesitancy to strike it out. Are we to be bound in such a way ? On the other hand if we want to alter the existing state of affairs, it is proper to keep the clause; but the very fact that we. are endeavouring to amend the provision shows that we are trying to get away from it in the direction of the existing common law. While I support the present amendment, I shall endeavour to get the clause eliminated.
Senator CLEMONS (Tasmania).- I cannot help adding a few words in reply to the remarks of Senator Keating. It is a most extraordinary position to take up, that when honorable senators on both sides are anxious to improve the Bill, without the slightest suggestion! of party tactics, but animated simply by only the one desire, the Minister, of all others, should have the audacity to upbraid us. It is of infinitely more importance that we should give every consideration to a Bill in Committee, which is the place to safeguard legislation, than, that we should devote four or five hours to making second-reading speeches. I regard the amendment as a fair and proper corollary to the amendment - which was passed at the instance of Senator Pearce, but which the Minister declined to entertain, when suggested from this side. I have had the unparalleled audacity to submit an amendment, which, because I have moved it, I feel perfectly sure will be defeated. That certainty, however, will not deter me from pressing the question to a division. It is not sufficient, in my opinion, to say that the alterations or additions shall be material or substantial. Even if those terms are used no one will deny that there are differing degrees of materiality and substantiality; and a Judge, with counsel appearing for the parties, might be forced to admit that an alteration was material, and that as the law gave him no discretion as to whether it was material enough, he would be bound to say it was a new book - a decision he would not have arrived at if he had not been fettered by the clause. The amendment, so far from weakening the clause, strengthens it, and it only carries out the procedure which, especially in measures of this kind, is observed. It is rarely that in our legislation we bind a Court down with any rigid words. Senator Keating will bear me out that the history of legislation shows innumerable blunders committed by Parliaments in making hard and fast rules in legislation of the kind.
– Judges have made very serious blunders.
– We always place the Judges above Parliament, and something is left to their discretion. It is the pride of our system that a Judge is not absolutely bound hand and foot by the mandates of the Legislature, and that we allow him the exercise of discretion. Not to do so would be to assume that we are able to draft a Bill which will secure absolute justice without the slightest chance of anything going wrong. I propose to press my amendment, merely because I think it a desirable corollary to the words we have already inserted.
– This is an exceedingly important clause, and the discussion we have had on it has been most valuable in presenting new phases of the question, and indicating difficulties which might arise. I think, that the promise given by the Minister, that he will offer no objections to the recommittal of the clause, offers the best way out of the difficulty.
– He should know the mind of the Committee.
– I am not sure that it would not be advisable to agree to the amendment, but I think it would be better that an opportunity should be given to have amendments suggested on the clause when circulated, so that we might be able to compare them with the text of the clause.
– Would it not be better to strike the clause out?
– That would only give the same result. If the amendments proposed are circulated we shall be able to decide on the best course to adopt, and if it is found necessary ihe clause may be altered on recommittal.
Senator MULCAHY (Tasmania).- I do not take it that the Minister offers unreasonable objection to the amendments, but he is naturally anxious to adhere to the Bill as it stands. I remind the honorable and learned senator that every amendment of the clause so far proposed has been in the direction of liberalizing its provisions in the interests of the general public. The tendency of the clause as it stands is to confer on the owner of the copyright something more than many honorable senators believe he is entitled to. I think it would be better to state such amendments of the clause as the majority of the Committee think advisable, and the Minister will then be able to consider whether he cannot draft a new clause to meet the wishes of the Committee.
Senator GIVENS (Queensland).- I believe it would be better to recommit the clause, and any amendments to be proposed might be left over until that is done. It will be admitted that the discussion on the clause has been illuminating, and we are now better acquainted with its probable effect, and the difficulties surrounding it, than Ave were before the discussion commenced. I fail to see why there should be an outcry against that discussion as though it had been a mere waste of time. It has not been a waste of time. It is within the knowledge of every honorable senator that we have frequently adjourned because we have had nothing to do. Now that we have something to do, and have ample time in which to do it, we should see that it is done properly. I have no objection to the clause passing now, on the distinct understanding that opportunity will be afforded for the fullest right of discussion and the fullest right to amend the clause on recommittal. I propose to indicate now, for the convenience of the Minister, the amendments which I desire should be made. I wish to insert after the word “book,” in line 3, the words - and the copyright of the same shall vest in the then owner of the copyright in the former edition.
Following that amendment, I should like to propose the insertion of a new clauseafter clause 26, preserving the right of the owner of the copyright in the original work, and preventing any depreciation of the value of that right. I wish also to preserve the rights of joint authors in a work which is the product of joint authors, and the rights of publishers to whom joint authors may have sold the copyright of an original edition.
Senator Sir JOSIAH SYMON (South Australia). - I wish to make a fresh suggestion. It has already been suggested, first, that the clause should be postponed, secondly, that it should be allowed to go as it stands, and that opportunity should be given to amend it on recommittal. That is always an uncertain and an unsatisfactory course to adopt, because the clause proposed for recommittal may come on for consideration at a time when honorable senators taking the deepest interest in the subject may not be present.
– They ought to be present.
– My honorable friend is stating a counsel of perfection with which we all agree. We ought to be here every minute, but the frailty of human nature is such that it is possible some of us may not be here, when we ought to be.
– In the only case of the kind which occurred before this session I held up the decision of the Committee until an opportunity was given to the honorable senator, who asked for a recommittal, tq be present and express his views. I refer to an amendment proposed by Senator Pulsford in the Wireless Telegraphy Bill.
– I did the same thing last session for the convenience of honorable senators who wished to discuss the union label provisions of the Trade Marks Bill. However, in connexion with that measure, when a second attempt was made for the purpose of reconsidering the union label clauses, I refused to be a party to the recommittal, and the motion was withdrawn. If honorable senators are not present to take advantage of an opportunity afforded for recommittal, they should take the consequences. We are now approaching th« hour at which it is usual for the Senate to adjourn on Friday afternoon, and I suggest that Senator Keating should move to report progress. That will afford us an opportunity to consider the various amendments suggested in connexion with this clause between now and next week, and it will not be necessary either to postpone the clause, or to seek its recommital. I ask my honorable and learned friend to adopt that course, but if he does not fall in with this third suggestion, I shall address myself to the amendment suggested by Senator Givens.
Senator KEATING (Tasmania- Honorary Minister). - With regard to the third suggestion, I would point out that we have still half-an-hour before the usual time for the adjournment of the Senate, and I think we would be justified intaking advantage of that time to proceed with the Bill.
– The suggestion made might obviate thenecessity of recommitting the Bill.
– It might, but on the other hand we might make some progress, and I remind honorable senators that in half-an-hour discussion last evening we made as much progress as we have done during the whole of to-day.
– We are much more enlightened as to the effect of this clause than we were this morning.
– I think we might make still further progress. Senator Symon has indicated that he is prepared to address himself to the amendment suggested by Senator Givens. If we continue now we shall, at any rate, have the benefit of the honorable and learned senator’s remarks on those amendments.
Senator Sir JOSIAH SYMON (South Australia). - This is hardly the way in which the transaction of business can be facilitated. The Minister has himself said that he has nothad sufficient time to consider the amendments, and when an opportunity is offered to him to take some days for their consideration he will not accept it, but insists on wasting half-an-hour when honorable senators are desirous of getting away. We are now dealing with the amendment proposed by Senator Clemons, and if on division it is not carried. I can discuss suggestions made by Senator Givens, which it would not be in order to discuss now.
Question - That the word “ shall,” proposed to be left out, be left out - put. The Committee divided -
Ayes … … … 10
Noes … … … 13
Majority … … … 3
Question so resolved in the negative.
– In the face of the opposition of the Minister, I suppose there is no use in my going on with the amendment I indicated.
– I do not wish to jump the honorable senators claim, but if he does not move the amendment I shall, because it is a right one.
– If the amendment were moved now and defeated, in what position should I be when the recommittal of the clause was proposed?
– If the Bill he recommitted, the honorable senator can move any amendment he pleases.
– In that case, I move -
That after the word” book,” line 3, the following words be inserted,” and the copyright in the same shall vest in the then owner of the copyright in the former edition.”
My desire, in moving the amendment, is to safeguard the interests of the joint authors of a book, so that a new edition could not be issued by one of them to the prejudice of the other.
– “The then owner” might be the publishers.
– Quite so. There are a number of persons who need to be protected. For instance, the owner of copyright in a book needs to be protected because, under the clause as it stands, any man could come along and pirate his work by making a few substantial or material alterations:
– A publisher might be ruined by allowing the author to get a new copyright.
– Yes. Supposing that an author sold the copyright in a popular work to a publisher for a considerable sum, and that after an edition had been published the author were to make substantial or material alterations in his work, this clause would give him a property in a new work which would supersede the old one. He could sell the copyright in the new work to another firm of publishers, and thus practically swindle the publisher of the original edition to whom he had sold his copyright.
– Is it possible for the Committee to thoroughly understand what effect the amendment would have upon the clause? It has been moved in a fragmentary style, and although we have not had time to write it down, yet we are asked to vote upon it.
– It was read out over half-an-hour ago.
– The previous amendments were verbal, and practically carried out the spirit of the clause. But this amendment, so far as I can understand it, does not deal with the subject-matter of the clause. It introduces the question of the ownership of copyright, and ought to be moved as a separate clause. I confess that I am in the dark as’ to its exact meaning. The clause deals with the copyright in a second or subsequent edition of a book, that is, a new book. The question of the ownership of copyright is dealt with in clauses 18, 19, and 20. If it leaves any doubt as to whether ownership would be disturbed by the issue of a new edition, then the question of ownership should be dealt with in a separate clause, and not in this clause. In all friendliness, I would ask Senator Givens to withdraw his amendment, and, after we have had an opportunity of comparing his proposal with other clauses, we shall be in a position to make up our minds. In what position will he place us if he presses for a division to-day? He admits, as the discussion has shown, that the question is a complicated one.
– It is not the mover of the amendment, but the Minister who is forcing a division now.
– The Minister has given Senator Givens a definite promise that he will agree to a recommittal of the clause.
– We might not have so full an attendance then. We have only twenty minutes left in which to do this work.
– As honorable senators know, this clause will be the first business taken at the next sitting. In order that an opportunity may be given to honorable senators to gather its purport, Senator Givens should withdraw his amendment and allow it to be put in print, and then we could proceed with the consideration of other clauses.
Senator MILLEN (New South Wales). If I understood the speech of Senator Pearce aright, it was an appeal to the Minister to consent to an adjournment in order that this might be the first business taken on Wednesday next.
– I regret that my explanation was so dense.
– What the honorable senator is trying to do now is to get in an explanation.’ The clear effect of his remarks, especially his reference to Wednesday, was to show that it is desira’ble to report progress now, in order that the matter may be taken up on Wednesday next, when it will be comparatively fresh in our minds. If, however, the clause be passed to-day, with the promise of a recommittal, some weeks may elapse before we shall be called upon to approach its consideration again, and our minds will not be as closely in touch with it then as they are to. day, after a lengthy discussion. I am satisfied that we all see the clause in an entirely different light from that in which it was presented to us when we first approached its consideration. If three or four weeks were to elapse before we again turned our attention to the provision, the effect of to-day’s discussion would be largely lost. If, however, another day has to be spent in the discussion of the provision later on, the Minister must take the responsibility for that consumption of time. I would ask the Minister to consent to report progress, with a view to affording us an opportunity to recast the proposal before Wednesday next, and enabling him to see how far he can go to meet the views expressed, not from this side alone, but from various quarters.
– I hope that the Minister will not force us to a division on the amendment to-day. It is a matter for serious consideration whether the amendment ought not tobe moved as a new clause, and also whether it really goes far enough. Senator Givens has moved an exceedingly important provision, which may raise many issues. It may extend further than the proprietorship of the author of the original book. It may involve manyother serious considerations. I hope, therefore, that the Minister will consent to report progress.
SenatorPlayford. - Not until four o’clock.
– I do not see any particular virtue in going on until that hour. We shall not do any more work than we have done. We have spent a great deal of time upon the consideration of this clause, and I think that honorable senators on both sides deserve credit for giving their very serious attention to its subject-matter. The discussion has not been a waste of time. On the contrary, it has done a great deal of good, although we have not passed manyclauses. If business were likely to be done, I should certainly say let us proceed.
– Why not allow the clause to be postponed, and afterwards recommit it, so that we may go on with the next clause?
– The Opposition want to run the business..
– I do not take the criticisms from the other side in that spirit. The argument of Senator Millen just now seemed to me to be a common-sense one. Let us report progress now, and resume this discussion on Wednesday, after we have had time in which to express our ideas in perhaps better language.
– I am sorry that my honorable friend Senator Givens could not see his way to follow the course which he first intended, and to accept my suggestion to bring this matter up at a later stage.
– It would not have facilitated matters, because other honorable senators would have moved similar amendments.
– I informed the Committee some time back that I should be prepared to accept a recommittal of the clause in its entirety, at a proper stage, and that I would not oppose the recommittal of an additional clause if Senator Givens thought it desirable to express his wishes in that form. But I can see some objection to this amendment. The intention is to provide that copyright in a new edition shall be in the owner of the copyright of the former edition. Whether the word “former” would mean the owner immediately prior or the owner of the copyright of the first edition might be open- to question.
– The amendment says the “ then “ owner.
– There might be hardship in a case like that. For instance, the editor of a particular work might acquire the copyright in it, and subsequently somebody else, by his own knowledge and research, might give an added value to that work, with the consent of the parties concerned in the copyright, and might wish to have the copyright himself. But the copyright, by the operation of law, and apart from any express arrangement between the parties, would vest in some other person who did not desire to hold it. Senator Givens has pointed out, and Senator Drake and Senator Symon have by their applause indicated that they hold a similar view, that, in his opinion, a man who is not responsible for an original work can acquire copyright in it by. making some additions or alterations of a material and substantial character. But if the person who made the additions or alterations were to publish the original book for the purpose of his own work he would at once be guilty of piracy, and that would deprive him of any opportunity of getting copyright. He would not be the author of the production, but only of the emendations or alterations. Consequently he could not get copyright. Further, if he published such a work, and drew largely, as he would necessarily do, on the original work, he would be guilty of piracy.
– Not he.
– Well, I have to unlearn a good deal that I have studied in connexion with copyright if Senator Clemons’ view is correct ! He argues that it is possible for a person to take hold of another’s book, and, by making alterations or amendments, acquire copyright in it. But I reply that if he were to draw upon the original work he would be guilty of piracy in the first instance, and his very action would void any possibility of acquiring copyright.
– It depends entirely on the alterations made.
– Even if he added ten times the amount of the original work, and he drew upon the original work substantially, he would still infringe the copyright of the author of the original work. He would beguilty of piracy, and his very supposed rights would be founded upon wrong. When he claimed copyright in the work which he had so amended, he might be asked, “ By virtue of what do youclaim it?” “Because I have brought out a new book.” “ Section 18 of the Copyright Act says -
The author of a book shall be the first owner of the copyright.
Are you the original author of this book?” “ No, I amonly the author of the alterations made init” If he published such a work he would be guilty of piracy in the very act, and would be subject to all the penalties, civil and otherwise, for so doing.
– That is not the point on which I relied. My point was as to joint authors having their rights protected.
– Does the Minister consider that it is safe to retain the words “ any person “ ?
– I do not.
– The right to produce an original work is vested hi the owner of the copyright by clause13. An original work can only be reproduced by the person who has the copyright in it, or some person authorized by him. Copyright may be assigned absolutely or partially to some other person in some particular locality for some particular period. That is the reason whythewords “ any person “ are inserted. I will give an instance. In the case of some large works of world-wide value, the owners of copyright in Great Britain or America assign, say, to persons in Canada, for a limited term, the right to republish. There is a case in which the Court at. Toronto, in 1903, decided, in the case of Black v. The Imperial Publishing Company, in connexion with the Encyclopaedia Britannica, that the person who had the right to publish was not the holder of the copyright, but simply a licensee. The words “ any person “ are included because some other person than the owner of the copyright may have a right to publish - limited as to time or place. Different positions might arise in differentsituations with regard to holders of copyright. For these reasons I would urge Senator Givens to take advantage of the opportunity which I promised to give to him.
– Seeing, that we have now arrived at the usual time for adjournment,I would urge Senator Keating not to proceed further with the Bill to-day. I certainly hope that no attempt will be made to take this matter to a division. I do not use any threat, but I certainly hope that no division will be taken.
– I think it would be disastrous to honorable senators opposite.
– Imake this as a purely friendly request.
Senator KEATING (Tasmania- Honorary Minister). - Senator Givens has promised to give consideration, with me, to his amendment, between now and Wednesday, and I hope to be able to prepare something in harmony with the rest of the Bill if it is thought desirable to make an alteration. Personally, I think that if anything is to be done, the idea of a separate clause is the better one.
Senator PLAYFORD laid upon the tablethe following paper : -
Return of all person’s temporarily employed in the Public Service during 1904-5.
Senate: adjourned at 3.58 p.m.
Cite as: Australia, Senate, Debates, 22 September 1905, viewed 22 October 2017, <http://historichansard.net/senate/1905/19050922_senate_2_27/>.