2nd Parliament · 2nd Session
The President took the chair at 10.30 a.m., and read prayers.
– Under standing order 411, which reads -
Any senator may rise to speak “ To Order,” or upon a matter of privilege which has arisen since the last sitting of the Senate -
I rise to a question of the privileges of the members of the Senate. When reading the Argus this morning, I was very much astonished to observe that the King’s representative in Australia, the GovernorGeneral, had been making a speech.
– When an honorable senator rises to a question of privilege he must state the terms of the motion he proposes to move, and produce a copy of the newspaper, before he makes his speech, in order that the President and the Senate may judge whether it is a matter of privilege or not.
– I was in hope, sir, that a reference to the question, without a motion being moved, might effect the end I have in view; but, since it is necessary to more a motion, I beg to move -
That it is not in the interests of the peace, order, and good government of the Commonwealth that the King’s representative should discuss controversial public questions such as that of military and naval defence.
– Does the honorable senator think that this is a question of a breach of the privileges of the Senate? Is it not rather a question of policy ?
– I think it is a matter concerning the privileges of the members of the Senate, for this reason : That a minority may hold a particular view on a question of public policy, and it may be able by its own efforts to bring the majority round to its way of thinking. But if the Governor-General throws the weight of his great influence into the scale against the minority–
– He has not done so. That is an unfair statement to make.
– This is not a matter concerning the privileges of the Senate.
– I shall object as far as I can to the matter being raised as a question of privilege.
– Order ! I wish to ascertain how Senator Higgs makes it out to be a question of breach of privilege before I give a ruling.
– It is the duty of the Senate, I take it, to protect any one or more of its members, and it may do so by expressing an opinion as to the action of a very high official.
– Undoubtedly, the honorable senator can give notice of the motion which he now wishes to move, and discuss it, whether it is a matter of privilege or not. But no motioncan be moved without notice, and as a matter of privilege, unless it really does affect the privileges of the Senate. Is it not a matter of public policy which the honorable senator wishes to bring forward ? It may be argued on one side or the other that it is inadvisable for His Excellency the Governor-General to express opinions on political matters, but does that make the act a breach of the privileges of the Senate? I do not think it does. The honorable senator had better give notice of a motion.
– Assuming, sir, that a vote was to be taken in the Senate.
– Order ! a ruling has been given.’
– I do not wish to discuss the matter, but to ask a question.
-The honorable senator ought not to discuss the matter. If he wishes to bring it forward he ought to do so in a manner to which no exception could be taken, and that would be by giving notice of the motion. Does he wish to give notice of a motion?
– Not at present, sir. I shall think over the terms of a motion.
Motion (by Senator Turley) agreed to -
That a return be laid on the table of the Senate showing -
The quantity of machinery imported into Queensland from Great Britain and foreign countries (tons) for the years 1899 to 1904 inclusive?
The cost of machinery imported into Queens land from Great Britain and foreign countries for same years?
The quantity of machinery imported into Queensland from other States of the Commonwealth for same years?
The quantity of machinery manufactured in the State of Queensland for same years?
The cost of same?
The average cost per ton of general machinery imported into the Commonwealth from Great Britain for same years?
The average cost per ton of general machinery imported into the Commonwealth from foreign countries for same years?
The average cost of general machinery imported into Queensland from other States of the Commonwealth for same years?
The average cost of producing one ton of general machinery in the State of Queensland for same years?
The number of persons engaged in the iron industry in Queensland for same years?
The average rate of wages paid to ironworkers in Great Britain for same years?
The average rate of wages paid to ironworkers in foreign countries for same years?
The average rate of wages paid to ironworkers within the Commonwealth for same years?
The average number of hours worked per day by ironworkers in Great Britain in same years ?
The average number of hours worked per day by ironworkers in foreign countries for same years?
The average number of hours worked per day by ironworkers within the Commonwealth for same years?
Motion (by Senator Pearce) proposed -
That a return be laid on the table of the Senate showing -
The average rate of wages paid to ironworkers for the years 1899 to 1904 inclusive in each of the separate States of the Commonwealth ?
The average rate of wages paid to ironworkers for the same years in the districts of London, the Clyde, and the Tyne (England) respectively ?
The source of the information ; as to what statistics the average rate of wages is derived from ?
– May I be permitted, sir to ask a question in reference to the motion?
-The honorable senator can ask a question, but he cannot discussthe terms of the motion which is being taken as formal business.
– In complying with the terms of the motion, will the leader of the Senate endeavour to have defined what is meant by the term “ iron workers “ ?
– I do not know what is meant.
Question resolved in the affirmative.
Senator PLAYFORD laid upon the table the following paper: -
Regulations under the Defence Acts 1903-1904. - Statutory Rules 1905, No. 56.
In Committee (Consideration resumed from 28th September, vide page 2940) :
Clause 34 agreed to.
Clause 35 (Copyright in artistic works).
– Is it quite in accordance with our law that a person, who is not a British subject, shall get copyright in Australia?
– It is quite in accordance with our law, and also with the law prevailing throughout the British Empire, including Canada.
– It has been approved of by the Committee in regard to copyright in books.
– Yes; in regard to copyright in literary, dramatic, and musical works. Of course, if a person makes an artistic work in Australia, he is given copyright, no matter where he may have come from. Under the British law, if a man, no matter what country he is a subject or resident of, brings out a book in the British dominions, he may acquire copyright therein. He need not even be in the British ‘dominions when it is brought out. According to the law of the United States, which is very exclusive in the matter of granting copyright, so long as the conditions of local production are complied with, a man, whether resident in England or elsewhere, can acquire copyright. The principle of this Bill is to give copyright when the work is produced within our own limits .
Clause agreed to.
Clause 36 amended (on motion by Senator Keating), and agreed, to as follows : -
The copyright in an artistic work shall begin with the making of the work, and shall subsist for the term of forty-two years, or the author’s life and seven years, whichever shall last the longer.
Clauses 37 and 38 agreed to.
Clause 39 (Copyright in photographs).
– Perhaps I should have called attention upon the previous clause to a point which I desire to bring under consideration. There seems to me to be a possibility of some over-lapping. This clause deals
with photographs, and clause 38 dealt with copyright in “ portraits.” Is not a photograph a portrait? To say that it is not is rather a libel on the photographer.
– A portrait is not always a photograph.
– We have provided that ‘a portrait shall be the property of the person who gives the- order, and who calls the work into existence. Now we speak of a photograph. I admit that all photographs are not portraits, but I am dealing with a case where the two terms might be applied.
– There may be a photograph of a country scene.
– But take the case of a photograph of an individual. It appears to me that we might prevent complications arising.
Senator KEATING (Tasmania- Honorary Minister). - The very consideration to which Senator Millen has directed attention gave me a considerable amount of trouble, but I think the way in which the clause is framed will meet the whole of the circumstances. We state, in the definition clause, what a portrait means. It includes - any work, the principal object of which is the representation of a person by painting, drawing, engraving, photography, sculpture, or any form of art.
Where there is a photograph of an individual, it is undoubtedly a “ portrait. “ But the difficulty with which we are confronted is this : If we say “ when a photograph is made to order,” we are thrown back upon the class of cases referred to by Senator Macfarlane. Many photographs which are taken are not portraits. There are photographs of scenery. It is obviously necessary that we should have some provision for those cases. But if we restrict clause 39 entirely to photographs which are portraits of people, we run another risk, in, that we provide in sub-clause 2 of clause 39 that when a photograph is taken, not by the principal of a firm, but by an employ^ on behalf of his employer, the employ^ does not get copyright in it, but the employer does. That must apply equally to the photograph of a landscape as to the portrait of an individual.
– The definition clause meets my objection. I had overlooked it.
– The idea of mentioning a photograph in this clause is that we provide in sub-clause 1 that where a photograph is made for valuable considera tion, the photographer shall not get copyright in it; but subject to that, in all cases where a photograph is taken of a person, or of a scene, an employ6 shall not be considered the author of it. Photographs may be taken by mechanical processes, but clause 38 includes portraits of an artistic character.
– If one goes into a photographer’s shop and has his portrait taken, does the negative belong to him or to the photographer ?
– To the photographer.
– The clause seems to provide to the contrary.
– No, the right to reproduce belongs to the person who commissions the taking of the photograph.
– Sometimes when a beauty of the town gets her photograph taken it is put into the window of the studio of the photographer who takes it. I have known ladies to object to that.
Senator KEATING (Tasmania- Honorary Minister). - If a beauty orders her photograph and pays for it, and the photographer without her consent desires to put it into his window she can prevent him. He cannot exhibit it without her consent. Very often, however, there is, I suppose,’ consent on behalf of the beauty to have her charms so displayed.
– II have even seen the portraits of prominent politicians exhibited in photographers’ windows.
– Exactly. If a photographer asks a person to give him a sitting - whether a beauty of the town or a prominent public main - and the photograph is taken for nothing the photographer has copyright in it, and has the right of exhibiting it. But if any honorable senator gives a photographer an order for a photograph’ and pays for it, he can prevent the photographer from multiplying copies or even from exposing it in his shop. Hinkson, on page 62, says -
The question sometimes arises, who is the author of a photograph? The author of a photograph is the artist who takes the negative ; not the person who employs the artist, and supplies him with the camera. In the case of commissioned pictures and photographs, the copyright belongs to the person giving the commission (Boucas v. Cooke, Court of Appeal, 1903), but the property in the negative and the glass upon which the photograph is, in the absence of any agreement to the contrary, vested in the photographer.
Therefore, if a person pays a photographer to take his photograph he has a right to restrain the photographer from reproducing any more copies than he requires, and also to restrain hiro from selling copies without consent, or exhibiting them or giving, them away
– I think that the words “ for valuable consideration “ may lead to some confusion. It is difficult to know what the term means. What might be “ valuable “ to one person might be quite otherwise to another. There is, I think, something in Senator Dobson’ s remarks. Portraits are sometimes taken of public characters. For instance, actresses may be burlesqued, and held vin to ridicule in shop windows. I have no doubt that Senator Dobson had such cases in view. I do not speak from personal acquaintance with such ladies, but I can well understand that there may be cases of the kind, and I have no doubt that Senator Dobson could, if he chose, give us some useful information. I do not think that any member of the Senate would give countenance to the burlesquing of ladies if it could be prevented by means of this or any other Bill.
Senator KEATING (Tasmania- Honorary Minister). - “Valuable consideration” is a term that is very well known to the law. It appears in many statutes, and has also been the subject of numerous decisions. In fact, it is a fundamental principle of law that a contract shall not be binding in certain instances unless “ valuable consideration “ pass from one party to the other. It is a much better term to use than the one I had in view originally, namely, “commissions a photograph.” It would be difficult, in many instances, to understand what was meant by “ commissioning “ a photograph. Therefore, we provide for a photograph being made to the order of ari individual for “ valuable consideration,” and that clearly indicates the case of an individual going to a photographer, asking him to take a photograph, and paying for it in money or in some’ other way. It will be noticed that the language used is “made to order for valuable consideration.” Where that takes place, the customer who gives the order will be entitled to copyright in the photograph.
– Would it make any difference in a case where an order was not given ?
– In such a case the person who was photographed would take the risk of having the picture exhibited, and the photographer would have the right to reproduce. But, at the same time, it would always be possible for the person so photographed to make an agreement with the photographer that the picture was not to be exhibited, even though nothing was paid for it. An arrangement could be made also that, though no valuable consideration passed,, the copyright should be the property of the person who was photographed. Very often a photographer gets well-known persons to sit for him, in order that he may advertise his own business and show how excellently he can reproduce the subjects whom he photographs.
Clause agreed to.
The engraver or other person who makes the plate or other instrument by which copies of an artistic work are multiplied, shall be deemed to be the author of the copies produced by means of the plate or instrument.
– This clause would appear to be specially designed to make piracy easy. As I am sure that is not the idea of the Minister. I should be glad to hear some explanation.
– I should like to know whether, in the absence of any provision to the contrary, an engraver could reproduce a work of art without the consent of the holder of the copyright ?
– Ought there not to be a provision to Chat effect?
– There is a provision to that effect in the Bill.
– This, clause, in my opinion, will require some little alteration. I suggest that it ought to be made to refer to engravings made by an engraver “or by his employes.”
– An amendment to that effect has been circulated.
– There appears to be a conflict between clause 34 and the clause under consideration. Under clause 40, so far as I understand it, the author of an artistic work will have no rights as against any one who wishes to reproduce that work by engraving or otherwise, whereas clause 34 secures such a right to the author.
– Clause 34 provides that Kbe copyright in an artistic work means the exclusive right of the owner to reproduce or authorize another person to re- produce the work. Clause 40 provides that the engraver shall be deemed to be the author of the copies produced, if the engraving be made with the authority of the original owner of the copyright of course. As in the case of Mr. Roberts’ picture of the opening of the Federal Parliament, it might be desired to have a number of prints reproduced, and an engraver might be commissioned to prepare the necessary plates. In the absence of any agreement between the artist and engraver the latter, under this clause, is deemed to be the author of the copies produced. The clause does not say that the engraver shall be absolutely the author - that is a matter entirely for arrangement.
-Could an engraver get copyright for the reproductions?
– An engraver has the copyright in the prints of the engraving, in the absence of any agreement to the contrary. It is ‘obvious that the original author, with the knowledge of this provision, would make such an arrangement as he might desire. He might wish to keep the copyright in the prints for himself, or to part with it to some particular individual, perhaps to the engraver himself, or to some other purchaser. In order to bring clause 40 into conformity with the preceding clause I beg to move -
That the following words be added to stand as sub-clause 2 : - “ When the plate or other instrument mentioned in this section is made by an employe on behalf of his employer, the employer shall be deemed to be the author of the copies produced by means of the plate or instrument.”
This amendment places engravings in this respect on the same plane as photos., but the clause carefully states that the maker of (he plate shall be deemed to be the author of the copies produced. When we come to deal with the clauses relating to infringements I shall be able to show that an artistic work may be infringed in various ways. For instance, anybody who, unauthorizedly makes a plate of such a work and produces’ prints will be guilty of an infringement. A considerable time ago there were brought under my notice cases in which enterprising Americans had obtained cheap prints of valuable paintings, belonging to public or private institutions in Great Britain. As we know, when pictures are engraved, a number of artists’ proofs are issued at prices ranging, perhaps, from ten to twenty- five guineas, while other prints are sold at, perhaps, two guineas.. These people from America purchased cheap prints, and then, by some mechanical process, produced in America copies which were sent to Australia and other parts of the British Dominions, and sold at, perhaps, 2s., in opposition to the holders of the local copyright. This clause provides, as I say, that the engraver shall simply be deemed to be the author of the prints, unless there be an agreement to the contrary made between him and the engraver.
– I do not profess to understand this matter very clearly ; but, even after the explanation of Senator Keating, it appears to me that we might as well give the copyright in a book to the printer, as give the copyright in an engraving to the man who prepares the instrument by which copies are multiplied. Is Senator Keating satisfied that this clause preserves the right of the author of an artistic work?
– It is usual to distinguish engravings and prints of an artistic work from the original.
– Why should any person be allowed to take copies- of an artistic work ?
– If a person does so without authority, he infringes the copyright.
– In the absence of clause 40, a person might take copies under agreement.
– Is the purpose of this clause to enable a prosecution to be instituted against any one who makes unauthorized copies?
– That is provided for later.
Senator MILLEN (New South Wales). - This clause, it appears to me, is not only unnecessary, but likely to be mischievous. Clause 34 clearly vests the copyright in an artistic work in the author, and, not only the copyright, but also the sole right of reproduction. According to clause 40, however, it would appear that anybody who reproduces an artistic work will have copyright in the copies. Senator Keating explains that the copyright only vests in the engraver, in the absence of an agreement to the contrary; but, in my opinion, it would be far better to omit clause 40, because then no question could arise as to the person in whom copyright vests. Without this clause, if the original author wished to reproduce, he could make an arrangement with the engraver; whereas, if the clause be retained, the question may arise whether copyright does not vest in the engraver quite apart from clause 34. What is the value of clause 40?
Senator KEATING (Tasmania- Honorary Minister). - It is not always a copyright work that is engraved; works, in which no copyright subsists, may be the subject of reproduction by this means. We are simply providing, as has been done in most countries, that the engraver, whose work has always been considered an art, shall, in the first instance, be deemed to be the owner of the copyright in the prints, in the absence of any agreement to the contrary. The general principle has always been to recognise engraving as a distinct art, and to give the engraver, prima facie, a copyright in the engraving for which he is responsible.
– In contradistinction to, or subject to, clause 34?
– Not in contradistinction ; because engraving has always been regarded as a separate class of artistic work, just as sculpture is regarded as distinct from painting, and the latter from photography. I do not think any dangers or difficulties will attend the operation of this clause, which is in. conformity with the spirit of the Acts dealing with engraving copyright in force in Great Britain. These British Acts are somewhat lengthy and complicated; but the clause adopts the principle of the copyright law in force throughout the British Empire, though I do not on this speak advisedly as to the case of Canada. It does not follow that an engraver will necessarily seek to reproduce pictures which are copyright. Many pictures in which copyright originallysubsisted, have been dedicated to the public, and are placed in prominent galleries and other public institutions throughout the world ; and if an engraver reproduces any of these he obviously should, in the first instance, have the copyright. The case is different if an engraver, without authority, reproduces a copyright picture.
– There is no distinction made in this clause.
– No; and that is the reason we use the words “ shall be deemed to be.” If a picture be reproduced without authority the engraver is guilty of an infringement.
Senator MILLEN (New South Wales).The remarks of the Minister only make the danger more apparent. It is evident that the honorable gentleman is trying to deal with two classes of reproduction in one clause. There is a clause providing for the reproduction of works which have been dedicated to the public, and in which there is no copyright ; and that is perfectly legitimate. If the clause stopped at that point there would be no objection to it; but no discrimination is made between the reproduction of a work of that kind and the reproduction of a work in which the copyright exists elsewhere. It seems tome that the clause should be amended by making its provisions subject to clause 34. From the statement made by the Minister, it is manifest that we are in this clause seeking to deal with two distinct classes of reproduction. I would like the honorable and learned senator to consider whether the clause can adequately and without danger cover both classes of reproduction. We might possibly get over the difficulty by inserting at the commencement of the clause the words “ Subject to the provisions of section 34 of this Act.”
Senator KEATING (Tasmania - Honorary Minister). - I do not think the suggested amendment would alter the effect of the clause, but if, in the opinion of the Committee, it would make it more clear, I have no objection to accept it. In. the meantime, I withdraw the amendment before the Committee.
Amendment, by leave, withdrawn.
Amendment (by Senator Millen) agreed to-
That the following words be inserted at the commencement of the clause : - “ Subject to section 34 of this Act.”
Amendment (by Senator Keating) agreed to -
That the following be added to stand as subclause 2, “When the plate or other instrument mentioned in this section is made by an employe on behalf of his employer, the employer shall be deemed to be the author of the copies produced by means of the plate or instrument.”
Clause, as amended, agreed to.
Clause 41 -
– Something appears to me to be wanting in this clause. It provides that when the owner of the copyright in an artistic work disposes of that- work for valuable consideration, but does not assign the copyright therein, no person is to be authorized to make a replica of it without the consent in writing of the owner of the original work. That, it appears to me, would imply that, with’ the consent of the owner of the original work, a replica might be made ; but as the author of the work would not have disposed of the copyright therein, I find it difficult to understand how the purchaser of the work could authorize its replication. Under this clause the copyright still remains with the author. Although he has sold the work, he has not sold the copyright, and he should toe the only person to give authority for its replication.
Senator MACFARLANE (Tasmania).I think that some alteration of the clause 5s necessary. Many famous artistic works have been purchased for public galleries, and it is a common practice for art students to make copies of these works in the course of their studies. It will be admitted that we should not pass any clause which would have the effect of lessening the facilities afforded to art students to pursue their studies. Some provision, I think, should be made to secure to art students the right to make copies of pictures purchased for public galleries.
– With regard to the comments of Senator Millen, I point out that this clause is intended to deal with cases where the author of an artistic work of the character referred to, a statue, bust, or other like .work, disposes of it for valuable consideration.
– The work, But not the copyright.
– Quite so, he does not assign the copyright. When an artist produces an artistic work of this character and sells it to another person, that person, having paid for it, should enjoy some exclusive right in the work of the author in that particular subject.
– Why should not’ the same apply in the case of literary copyright ?
– That stands on an entirely different plane, because the facilities for the reproduction of literary work are totally different from those which exist in the case of the works dealt with in this clause. A man may order a picture or bust, and pay a very high price for it, and it would be obviously unfair to him if the artist were permitted to reproduce that work, perhaps, to his prejudice or disadvantage.
– Then he must assign partial copyright?
– The original work in these cases may derive considerable value, from the fact that it is the original work of a particular artist. If the artist is permitted to multiply replicas of it indefinitely every replica produced must necessarily lessen the value of the original work in the hands of the assignee. The clause deals particularly with portraits, statues, busts, and such works - not with landscapes or artistic works of that Character, but rather with works which have a personal value and interest. .If the author were enabled after he had sold ja particular! statue or bust to (multiply copies of it indefinitely, obviously the value of the one which he sold would be considerably diminished.
– Is not that reallyparting with his copyright?
– The position is that it is practically the law as interpreted, that in these cases, not of landscapes or works of a general character, but of a special and personal character, the man who pays for the work should be, to a large extent, in the same position as the person who is the subject of a photograph or portrait. The author still has copyright vested in him, but it is, so to speak dormant, and he “ cannot exercise his copyright without the consent of the person to whom he has parted with the statue or bust for valuable consideration. I might mention, as an analogous case, the famous picture painted by the celebrated artist Millais for the manufacturers of Pear/ soap. That picture cost some thousands of pounds, and obviously, when the firm bought it, there’ was an implied understanding, at any rate, that the artist would not reproduce it for sale to other people.
– My objection is to the words “but does not assign the copyright.” In every instance mentioned by the Minister the copyright has gone with the work. The copyright in the work just referred to certainly went to the firm that purchased the picture.
– They might have bought the copyright. The artist who does not assign the copyright in these cases likes to reserve to himself the right to make replicas of his work, possibly because he feels that he alone can do it justice. He does not care to part with his copyright lest it might be passed on to somebody else, who, in making a replica of his work, might not do it justice.
– But that might happen under this clause, as the purchaser of the work might give authority to an utterly incompetent person to make a replica of the work.
– A replica, of course, would be neither more nor less than a reproduction of a work in its exact size, shape and form, and the clause merely proposes to restrain the artist who has sold the work for valuable consideration from making a duplicate of it.
– But he has not sold the copyright?
– No; he might wish to make reproductions of his work by means of engravings or prints.
– In a case where the copyright is not sold, it appears to me that the use of the words “ no person “ is wrong. The reference should be, to the owner of the copyright.
– No , we are at the same time conserving the rights of the artist conjointly with those of the person who is the purchaser of his work. Suppose that artist A produces a work of that character, which he sells to Z. By the clause we prevent artist B from coming in and making a replica without his consent.
– It also debars artist A from the use of his copyright.
– We are only taking away from him the opportunity of making a replica ; but he cam do that with the consent of the purchaser of the original work. If a work of this character is sold by an artist to a person, the former has the copyright in the work, but subject to this one subtraction that the buyer has the right to authorize any person, either the artist or any one else, to make a replica.
– No person can do that without getting the consent of the owner of the copyright.
– Not without getting the consent of the owner of the work.
– The clause may be read to mean that it is necessary to get the consent of the owner of the copyright, as well as the consent of the owner of the work. I do not understand the application of the words “no person.”
– These words would apply generally.
– Then theownership of the copyright would be almost a farce.
– We provide afterwards that the copyright and the ownership of the work may be two distinct things. Senator Macfarlane referred to the case of works which have been purchased for galleries or institutions. Those works are entirely under the control of the managing authorities. If they acquire the copyright in an artistic work when they also purchase the property in the artistic work it is always open to them to allow students or others to reproduce the work. The Fine Arts Copyright Act of 1862, which does not operate outside the “United Kingdom, contains a curious provision. It provides that when an author sells an artistic work he has to do one of two things. Either he has to expressly reserve in writing to himself the copyright in the work, or he has to expressly assign in writing the copyright to the assignee of the work, and if the copyright in the work is not expressly reserved in writing, or expressly transferred’ in writing, it ceases to exist. That creates a most curious situation. We have to recognise in connexion with these works a kind of dual interest - an interest on the part of the author of the work and an interest on the part of a person who is not the author of the work, but its owner by reason of the purchase.
– By the clause the interest is not made a dual interest, but is handed over absolutely to the purchaser of the work.
– We do not say expressly here that the purchaser shall have power to authorize a third person to make a replica. In, my opinion only the artist would be able to make a replica, and he would require the authority of the purchaser of the work.
Senator MILLEN (New South Wales).I gather that the contention of the Minister is that the clause is designed to prevent anybody frommaking a replica, and to allow only the author of the work to make a replica with the consent of the owner. If that is the case, surely the term “no person” is inaccurate and faulty. If no person can make a replica without the written consent of the author, surely it must mean that any person can make a replica with his consent.
– That may be implied. Does the honorable senator propose the .omission of the words “no person,” with a view to insert the words “ the owner of the copyright,” and the insertion of the word “ not “ after the word “ shall “ ?
– Exactly. That would recognise clearly the dual interest which exists.
– I suggested a few moments ago that the words “the owner of the copyright” ought to be substituted for the words “no person.” But inasmuch as the clause distinctly deals with an owner who has not parted with the copyright, although he has sold the bust or statue, I take it that nobody, even with the consent of the owner, could make a replica, because he has to deal with the owner of the copyright. I am inclined to think that the clause as it stands is correct.
Amendments (by Senator Keating) agreed to.
That the words “ no person,” line 5, be left out, with a view to insert in lieu thereof, the words “ the owner of the copyright,” and that after the word “ shall,” line 6, the word “ not “ be inserted.
Senator DOBSON (Tasmania).- Subclause 2 seems to be drawn for the purpose of dealing only with busts of statues placed in a street or other like public place, such as a square, or garden. There is a statue in our Supreme Court; a statue of a celebrated! citizen may be placed in a town hall, and many works or art are placed in our public galleries. Is it intended to exclude those works from the operation of the provision?
Senator KEATING (Tasmania- Honorary Minister). - The idea is that if a statue or artistic work be exposed in a street or square or garden it is to be taken as being dedicated to the public. Suppose that there is a statue in an art gallery, or a Supreme Court, or a town hall. The persons who placed the statue in the building may have reserved to themselves, the copyright! in the work.
– If a statue is placed in a town hall, is it not dedicated to the public just as much as if it were placed in a street ?
– Not necessarily. On many occasions the trustees of an art gallery purchase a work which they do not wish to be copied, but it is always in their power to allow any person to make a copy of it. The idea of this provision is that the author may make a copy of a work which he has sold, if it is dedicated! to the public by being exhibited in a street or other public place, even though he has parted with the copyright to either the purchaser or to somebody else. It is a very desirable provision to allow the author of a work which is exposed in a public place to make a copy of it, but he ought not to have the general right to make a copy of a work which is exposed in a public building, because in many instances the trustees have paid an author a verv large sum for a certain picture, and the copyright, and if it is exhibited in a public build’ing copies ought not to be made without their consent.
– I was speaking of a work exposed in a town hall, which is a public place.
– A city council may provide a certain sum annually for the purchase of a portrait of the mayor or a councillor, to be hung in the town hall, and it may desire to possess the only copy of the painting. If the artist wishes to get the right to reproduce a work which is exposed in such a way, it ought to be a matter for arrangement between him and the purchaser of the work.
Senator DOBSON (Tasmania).- We are dealing now with an owner “ who may not have sold his copyright, although he has sold the article. Therefore ought not subclause 2 to be made to apply to only those authors who have sold the copyright? If an author has not sold the copyright it is a case of “thank you for nothing.” Can he not go and make a copy ?
– This clause is intended to apply to paintings as well as. to statues or busts. In the interpretation clause we have a definition of the term “ artistic work,” which includes every possible form of art. I think that it would be Setter if, instead of using the words “ statue or bust, or any like work,” which might possibly be held to apply only to sculpture, we used the wider term.
– It is sculpture that is intended.
– Surely it is intended to apply to paintings also?
– There might be paintings in the street.
– If we used the words “ artistic works,” it would be safer, and there would be no loop-hole for escape. It is quite possible that other works coming under the heading of “ artistic works “ might be exhibited in public places.
Senator KEATING (Tasmania - Honorary Minister). - I think it is better to adhere to the words of the clause. Usually it is only works of art of the character mentioned that are placed in public places.
– Would the Minister agree to recommit the clause if necessary ?
– Yes, I should not object to that.
Clause, as amended, agreed to.
Clauses 42 to 47 agreed to.
Clause 48 -
No action for any infringement of copyright . . shall be maintainable unless it is commenced within twelve calendar months next after the infringement is committed.
Senator MILLEN (New South Wales).It appears to me that twelve months is too short a time. It is quite possible that the author of a work living in Great Britain, who had secured copyright here, would not be able to commence an action in Australia within the time mentioned. It might be twelve months before he heard of the infringement, or before he could communicate with representatives in Australia,’ and take the necessary steps to protect his rights. I suggest that the period should be lengthened.
– Twelve months is the usual term prescribed for the limitation of actions for infringement of copyright. It applies, of course, only to actions. We have provided in clause 45 that remedies in case of an infringement may include an action for damages and penalties, and we have also provided for an injunction. Clause 48 applies only to an action for infringement to recover damages. It does not prevent a man from taking out an injunction to restrain further infringements. This provision obtains I think in all the States at present, as well as in Great Britain. Honorable senators will recognise that in the case of actions for infringement, the plaintiff occupies a very different position from that in other cases. For instance, in an action for infringement, the defendant is considerably limited as to the defences he can set up. He cannot set up as a defence that he acknowledges the source of the matter which he prints.
– That is only a limitation in the sense in which a man charged with theft is limited.
– Not by any means. The defendant cannot plead that he. has acknowledged the source of the matter which he has taken. He cannot plead that he took the matter in the absence of any dishonest intent; or in ignorance that it was stolen. The very fact of publication itself, no matter how honest his intentions may have been, is an infringement of copyright, and makes him liable for damages. Honest intent or ignorance of the fact that the matter is stolen are not available as defences ; and as twelve months is the usual term, I think we should adhere to it. In the case of Hogg v. Scott, referred to in Hinkson’s handbook, page 42, the author says : -
Vice-Chancellor Hall held that the limitation did not destroy the, author’s property in his work, and that an action for damages might be maintained, or a suit for an injunction, even though more than twelve calendar months had elapsed since the wrong had been done.
We have provided that a plaintiff shall not institute an action until after he has registered, and then he will have an action for damages for an infringement that took place prior to registration.
– A very doubtful provision.
– No; it is the usual provision.
– That does not make it good.
– I do not think there is any doubt about it:
-The mere fact that it exists in some other law is not in itself a sufficient reason why he should adopt it.
– It is a limitation that seems to have received general approval.
– Is it meant that the right of action shall be from the time of the infringement, or from the time when it comes to the knowledge of the owner of the copyright?
– From the time of the infringement. I see no reason why we should depart from the term fixed in all the States at present, and in Great Britain. Moreover, the Royal Commission that sat seven years ago recommended the same period.
– I am not in a position to dispute the accuracy of Senator Keating’s last statement, but the marginal note that governs this clause refers us to the English Act 5 and 6 Victoria. Immense strides have been made in copyright since then. Even if this clause is in conformity with an Act passed in some other part of the world, it is, nevertheless, a very proper thing to consider the desirableness of increasing the term. We are dealing with a copyright Bill that will be applicable to the whole of the Commonwealth, and which differs in that respect from the Copyright Act in force in any State. There may be many opportunities open in Great Britain to persons who wish to commence actions for infringement of copyright, that are not open to those who wish to commence actions in an extensive area like the Commonwealth of Australia. Senator Keating has pointed out, and of course it is a fact, that an action for an injunction may be taken at any time. But we want to secure to the owner of copyright not merely a right to obtain an injunction against a trespass, but a right to obtain damages if someone else has benefited from his brain-work. I do not see that there can be any harm in increasing the term. If I could see any danger in its being lengthened, I should not advocate it. But it is evident that some one may be seriously disadvantaged. A man who owns copyright which has been infringed may suffer considerable damage because he could not commence an action within the comparatively short time of twelve months. If a copyright work were pirated in some part of Australia, an author living in England might not be aware that the infringement had taken place within twelve months. There may be a considerable margin of time between when a man learns that his copyright has been infringed and when he can commence his action. I think the term mentioned in the Bill should be doubled, and I therefore move -
That the words “ twelve calendar months,” line 3, be left out, with a view to insert in lieu thereof the words “ two years.”
Senator KEATING (Tasmania- Honorary Minister). - Although the reference in the marginal note is 5-6 Vict., c. 45, s. ‘26., the term mentioned has been preserved in the English legislation. A great deal of evidence was taken on this subject in 1898 and T.899, and the result was that in clause 17 of the Bill of 1900, which was brought from the House of Lords, the term was fixed at twelve calendar months. At the same time there is a great deal of force in what Senator Clemons has said as to the conditions in a large territory like the Commonwealth. When I last spoke,’ I said that in the whole of the Statestwelve months was the usual term, but I find that I was incorrect, because section 50 of the South Australian Act of 1878 provides for two years. I think Ave ought to consider the special circumstances in Australia; and I see no objection to the amendment.
– I am glad that the Minister accepts. the amendment. Tn the case of a friend of mine who went on an expedition to the Antarctic regions, and who delivered a lecture before he went, and might have delivered others on his return, the term of twelve months would have been quite insufficient.
Amendment agreed to.
Clause, as amended, agreed to
Clause 49 agreed to.
Clause 50 -
If any person -
distributes or exhibits in public any pirated book or any pirated artistic work. . . . he shall be guilty of an offence against the Act, and shall be liable to a penalty not exceeding Five pounds for each pirated book or pirated artistic work. . . . Provided also that no person shall be convicted of an offence. . . . if he proves . . . that he . . . could not, with reasonable care, have ascertained that the book was a pirated book. . . .
– ls this clause necessary? Why should we make the bookseller liable when the owner of the copyright’ has his full remedy under another clause against the pirate?
– Why not punish the man who joins in distributing a pirated work ?
– There- may be cases in which it will not be clear that the book is pirated, and a “perfectly innocent man may find himself breaking the law.
– Look at the proviso.
– How can a bookseller who handles hundreds of thousands of books exercise “reasonable care” in such a case ? We have provided that copyright does not necessarily mean registration, so that a bookseller has no register to which he may refer.
– I regard this as a most desirable and necessary clause, because a great deal of the piracy which goes on is due to distributors, who are persons with whom we ought to deal drastically.
– I invite the attention of Senator Pearce to the fact that only a money penalty is provided in this clause, and it must be evident to those who have had the pleasure of listening to the honorable senator’s recent remarks that, in his opinion, this exhibits great inequality. One bookseller might be able to pay a penalty of £5, while another might not be able ; and I suggest that Senator Pearce, in order to show consistency and faith in his principles, should move to amend the clause by providing either imprisonment or hanging.
– This is truly “ jokin w’ defeeculty !” I intend to vote against the clause.
– It is generally the distributors of books who are largely responsible for piracy, because, in their absence, there would be much less temptation to indulge in the practice. Booksellers have peculiar opportunities for knowing which are, and which are not copyrighted books.
– And particular temptations to evade the law.
– Booksellers have to constantly deal with catalogues of new works published, or about to be published, and are acquainted with the names of both writers and publishers. If the name of the proper publishing firm appears on the print, there is a reasonable guarantee that it is illegitimate work, whereas if some other name, or no name, appear, presumptive or conclusive evidence is afforded of piracy. Innocent persons are adequately protected by the last paragraph.
Clause verbally amended and agreed to.
Where a dramatic or musical work is performed in a theatre or other place, in infringement of the performing right of the owner of that right, the person who permitted the theatre or place to be used for the performance shall be deemed to have infringed the performing right …. and shall be liable to a penalty not exceeding Five pounds, and the Court may, in addition to the penalty, order the defendant to pay to the owner of the performing right in respect of the infringement, a sum by way of damages to the amount of Ten pounds, or to such amount as the Court deems equal to the profits made by the performance of the work, whichever sum is the greater.
Provided that no person shall be convicted of an offence under this section, if he proves to the satisfaction of the Court at the hearing that he did not know, and could not with reasonable care have ascertained, that the dramatic or musical work was performed in infringement of the performing right of the owner of that right.
– This clause practically places on the owners of theatres, town halls, and other places of amusement the responsibility of preventing the performance of unauthorized dramatic or musical works. But such persons have very few facilities for finding out who is the owner of a performing right, or whether there is any infringement. The performing right of the owner is safeguarded in subsequent clauses, under which he may proceed for injunction or damages; and I see no necessity to bring in a third party.
– There is no liability if reasonable care be exercised.
– Still, the lessee, may be put to the expense of proving that he had exercised? reasonable care. Why compel, for instance, the town clerks throughout the Commonwealth to make an investigation of the performing rights held by, it may be, some little “tinpot” dramatic company ?
– I think the clause is necessary, if we put the responsibility on the right person. The words “ the person who permitted the theatre or place to be used “ might mean the landlord of the building, who knows nothing whatever about performances.
– Who else could be meant ?
– I thought the honorable senator alluded to lessees, whose life’s work, it may be, it is to conduct such performances, and who, with the knowledge they must possess, ought to be made liable. In the case of a lessee, it may be that his own company performs the pieces.
– This clause applies to more than theatres. It will apply to town halls, shire halls, and similar buildings in the country districts.
– I am trying to show that the landlord of the hall should mot be liable. It is the lessee of the place who should be liable, where plays .are performed for which he has not the performing right. I do not think the landlord of ‘ a hall should be compelled to show that he could not with reasonable care have found out that the performing right in a particular play was vested in the lessee of his hall. I do not think that is a responsibility which should be placed on his shoulders. I am in favour of the clause if the right person is made responsible.
– I hope the Minister will not alter this clause. To some extent we have here a parallel to the condition of things we were considering just now. It applies to the rights of musical composers with somewhat the same force that the preceding clause applies to the rights of .authors, of books I have already said that I am anxious to preserve to musical composers the full rights which they ought to have. I believe that the clause is safeguarded by the concluding paragraph.
– Who is meant by the word “ person “ ?
– I think that in this matter Senator Dobson has raised a point which might lead to some difficulty.
– Instead of the word “person,” we might use the words “proprietor, tenant, or occupier.”
– I was going to suggest to Senator Keating that perhaps it would be desirable to consider the use of the word “ person.” We might, for instance, take the case of the secretary of a public library or town hall. An action might be brought against such an official, and possibly the town council, or other body in whose employ he was, might not indemnify him, and it would be unfair that he should be penalized. Another aspect of the matter is that the clause might create difficulty in the bringing of actions. The words which the Minister has suggested would, I think, meet the case.
– The words I suggest are taken from the Musical Copyright Act
– (Western Australia). - I am inclined to agree with the contention of Senator Pearce that there is a danger to the owners of halls under this clause. The danger in the case of recognised theatres and halls of entertainment would, I think, be comparatively small, because the class of people who use them are not likely to go in for the performance of pirated ……… I be lieve the great danger would lie in the case nf halls in country districts, which might be used by strolling theatrical companies for the production of pirated plays, which, in many cases, might be produced under fictitious names. The owners might, in those cases, be mulct in damages on the ground that they had not taken reasonable care to prevent am infringement of the performing right of other persons. I know that in one instance a lecture was given in a hall of which I was a trustee. I had nothing whatever to do with the granting of permission for the lecture, but the result of it was that the hall was almost demolished, and the furniture was broken up. We sent in an account to both parties concerned in the riot, but neither party paid, and the owner’s of the hall, had to make good the damage. It might be held that in that case reasonable care was not exercised by the trustees, although the nature of. the lecture to be delivered was not stated. I think that the onus of producing a pirated play should rest solely on those who produce it, and the person who owns the performing right should be able to claim damages only from the persons who have actually infringed his right.
– This clause is inserted in order to remedy a growing evil which has been very apparent in Australia, and also in Great Britain. As far back as 1882, a special Act was passed in Great Britain to deal with infringements of performing rights in musical productions. Provision was made in that Act that the proprietor, tenant, or occupier of the theatre, or place of public entertainment let fori the purpose of any of these infringements should be liable to penalties and damages. The Act was altered in 1888. when a provision somewhat similar t’o this clause was enacted. It set out that a person should not be responsible where it was shown that he could not, with reasonable care, have ascertained that the performance of the dramatic or musical work was an infringement of the performing right of some one else. If this has been an evil in Great Britain, it has been, in a sense, a still greater evil here, by reason of the vast extent of our territory. I understand that persons out’ here, who purchase the performing rights in plays and musical productions, have in nearly every instance to put up at ‘least .£1,000, and in many cases they have to pay royalties in respect of every production, whether by themselves or by any one authorized by them. In
Tasmania we have had inferior companies presenting plays, the performing right of which was vested in persons residing in Melbourne or in Sydney. In those instances the latter have not deemed it advisable to incur the expense to which they would be put in proceeding for damages for the infringment of their rights.
– The offenders might go away and leave nothing behind.
– Exactly. This kind of thing is done throughout Australia, and it may be held that persons who let theatres and halls are contributory to the damage done to the holders of the performing rights. When honorable senators understand the practice which I am informed obtains, they will see that there is very little danger to be apprehended in passing this clause. Where the performing rights in these productions are vested in some persons in Melbourne or Sydney, the practice, I am informed, is to circularize the owners of all theatres and public places of entertainment throughout Australia to that effect. At all wellconducted theatres and similar places of public entertainment, a list is kept of various plays and productions, and of the persons who possess the performing rights in them. If an up-country town hall were let to persons who infringed the performing right held by some one residing in Sydney or Melbourne, the practice to which I have referred could be proved ; if it could be proved, also, that the owner of the hall had not been served with such a notice, that the complainant had not taken any steps to inform him that he was the owner of the performing right, the defendant might claim that he could not otherwise be expected to know it. If a play were produced under a different title or name, in infringement of a performing right, it would be competent for the defendant to prove that, while he knew the plaintiff held the performing right in a play, it was produced under another name, and although it was substantially the same play, he was not aware of the fact, as he had never seen the original play. I think it will be found that the clause provides sufficient safeguards, and no one would be likely to take proceedings under it unless he was prepared to prove to the satisfaction of the Court that the person against whom he was proceeding had deliberately, wilfully, and with proper knowledge, allowed his theatre or hall to be used for the purpose of an infringement of his rights. The Court would have to be fully satisfied, on the evidence submitted, that the defendant had been guilty of recklessness, carelessness, or of gross disregard of the rights of the person holding the performing right. I have said that there was legislation passed on this subject in the United Kingdom so recently as 1888. It is obvious that this is a growing evil, and 1 can assure honorable senators that I have had information for some considerable time which shows that it is an evil which is common in Australia. I think that, instead of the word “person.” we might use the words “ proprietor, tenant, or occupier who permitted “ the place to be used.
– Perhaps, it would be better to use the expression “ proprietor,, tenant, or occupier of the place used.”
– By using the word “ permitted,” we should throw upon the complainant the onus of proving agency or knowledge of the actual commission of an offence. I think we should throw on the complainant the onus of proving something more than that the defendant was the proprietor of the hall. It would then be for the defendant to prove that he had no notice that the complainant had a performing right in the production. He might be able to say that it was usual for him to receive from managers notices of the plays in which they had performing rights, and that in this particular instance he had not received such a notice. It would also lead to managers having these rights taking care to secure that in every instance such notices should be given, and they would keep a correct record of the different places to which they had sent them. Proof of failure to give such notice might then be a most satisfactory defence. If it could be proved that the notice had been given, and that in violation thereof the defendant had permitted his theatre to be used for the production of these plays, he ought to be punished. It is often difficult to get at the other people, but there is always a responsible person in the community who can be punished summarily. The proceedings have been found to work verv welt in Great Britain in connexion with the Musical. Copyright Act of 1888. A clause of this character, on the face of the Bill, will’ act as a deterrent, and also as a warning to people that they must exercise some little care in these matters. Persons who go to theatres and other places of public entertainment in Australia have to admit that the managers cater for a very high standard of taste indeed, although the managers have to pay very expensively for the performing rights. Still, thev are always ready and willing, I believe, to allow a piece in respect of which they hold such rights to be performed in various parts of the Commonwealth on very reasonable terms. I know that some managers on the mainland who had the performing rights in certain pieces, allowed them to be played for charities in Tasmania by local amateurs for nothing, and themselves paid the royalties, which are payable whether the pieces are performed for charity or otherwise. Under all these circumstances, I think they are entitled to a provision of this character, which will in most instances act as a deterrent, and bring about a satisfactory state of business between themselves and the owners of halls throughout the Commonwealth. I move -
That the word “person,” line 4, be left out, with a view to insert in lieu thereof the words “ proprietor, tenant, or occupier.”
– It is only fair to protect the purchasers of the performing rights in any plays against small companies or companies not worth powder and shot who perform the plays, as is frequently done, in the back-blocks. At the same time, we may run the risk of doing a grave injustice to the proprietors of halls and such places, unless it is made very clear that they shall not be liable if they have not received explicit and due notice that such companies have the right to produce the plays. Take, for instance, a new mining town which springs up in Western Australia. A man builds a hall or theatre, and wishes to cater for the public and confer a benefit upon the amusement loving people. Frequently he does not possess the educational attainments, and has not had sufficient experience in the theatrical world to know whether a visiting company is likely to have the right to produce certain plays.
– Then he ought to exercise the reasonable care which is required in the last clause.
– How can we ask a man of that class to exercise that reasonable care, unless he knows how to proceed?
– Then he should not have built the hall.
– The proprietor of a hall or a theatre should not be liable unless every proper step has been taken by a visiting company to show him that they hold a performing right. It is quite possible .that the agent of a company may say that they intend to produce a certain piece ; but the owner of the theatre may not be acquainted with the law relating to performing rights. It is hardly reasonable to expect such a person in an out-of-the-way place to know that there is a Copyright Act. I do not think that any one here wishes to do an injustice to a person who may innocently break the law relating to performing rights. So long as it is made clear that only the owner of a hall who has knowingly and wilfully permitted a company to produce a play without permission shall be liable for damages. I am quite willing to provide any reasonable safeguard to those persons who hold performing rights in plays.
– Certainly, the Minister has put a different complexion on the clause. He has brought to my recollection two cases which happened in Tasmania. Some months ago a man and his wife walked into my office and asked me to subscribe for the purpose of getting them out of the State. I found that they had been acting with a small company at the theatre, and the arrangement was not that they should pay a rent, but that they should give the proprietor half the proceeds. I do not know that it is more wrong to allow strolling players or small companies to produce a play without authority than to place upon the proprietors of theatres the onus of showing that no pirated performance has taken place therein. I am inclined to think that the clause had better remain as it is, with’ the amendment suggested bv Senator Keating. Many years ago in Tasmania we got up a performance of Pinafore for charity, but we did not discover until the night before it was to be played that it could not be produced: without the sanction of the holders of the performing right. We learned that the holders of the performing right were in Melbourne. The)’ allowed us to play on, the following night for charity, but told us that if the performance were repeated we must pay them £5. I recollect arranging that we should pay the royalty.’ That goes to show that there are two parties who have to be considered, and of the two I think we ought to protect the party who holds the performing right. The proprietor of a theatre or hall ought to take the responsibility of ascertaining whether his tenant holds a performing right or not before a play is produced.
– I think that the amendment is a decided improvement, but I am not quite sure whether it goes far enough. It is proposed to substitute for the word “ person ‘ ‘ the words “ proprietor, tenant, or occupier.” If an action arises under the clause, it will be one for damages brought against the principal, possibly for tort of his agent. The principal may never be seen. The theatre may be in charge of a person who is acting as his secretary or agent. If the paid agent of an owner lets the theatre without making proper inquiries, and an action is brought against the proprietor, who pleads that his agent did or did not do something, I am inclined to think that the words “ proprietor, tenant, or occupier “ will lie scarcely sufficient. I do not offer the opinion with any great certainty, but it seems to me that the amendment requires to be altered.
Senator KEATING (Tasmania - Honorary Minister). - I saw the difficulty, and perhaps the danger^ of using the phrase “person who permitted,” because it is too vague, and might include a person who should not be punished because of his relation to somebody else who would be more responsible. I suggested the substitution of the words “ proprietor, tenant, or occupier “ for the word “person,” because they are used in the Musical Copyright Act of 1888, and we should have the. advantage of the decisions thereunder. The point raised by Senator Clemons occurred to me, but I am reminded that, when a prosecution is brought before a justice of the peace, it is not generally open for the defendant to rely upon the ground that the act was done by his agent. Senator Clemons will probably remember a number of cases which occurred, I think, about 1892 to 1900 under the English Licensing Act. Although it was doubted at one time whether a licensee could be punished for the acts of his servant or agent, which were in breach of that Act, still it has been finally held that the act of a servant is the act of the master in these circumstances. For instance, the supplying of liquor by a servant contrary to the Act has been held to be a breach thereof by the master.
– That would apply under the Licensing Act, but I do not think it is of universal application.
– I think the reasoning on which the principle was asserted in those cases would be equally applicable here. We create an offence, and if a person empowers a man to let his hall or theatre, obviously he contemplates that that man may so let it as to constitute an offence and that he himself will be responsible.
– If the words “ who permitted “ were left out, it would be perfectly clear.
– No. When a. servant who was distinctly told by the proprietor not to let the theatre to a certain man, because he was going to play a number of pirated pieces, in the face of thatwarning let the theatre, that would not then be a defence for the principal.
Amendment agreed to.
Senator CLEMONS (Tasmania).- I think that the intention of this clause is to provide that a penalty not exceeding £5 shall be incurred for each offence. If so, we should distinctly provide that the penalty shall be incurred for each offence. A penalty of j£$ for a week’s performances would not be sufficient.
– I think that each act would be a separate offence.
– If so, it is all right. But if the words for “each such offence” were inserted, it would make the clause perfectly clear.
Senator KEATING (Tasmania- Honorary Minister). - Suppose that a man were to let a theatre or place of entertainment for Monday, Tuesday, Wednesday, and Thursday. I think that he would be guilty of an offence in respect of each performance. Of course it would not be necessar.y to prosecute him for each offence. Four separate informations or complaints would be laid, but one hearing would settle the lot. If the prosecution were successful, a fine would be imposed, and the other three cases would probably go by consent. If the Committee desires to make the point absolutely certain, I shall offer no objection to the insertion of “each such’ offence” after the words “Five pounds.”
Amendment (by Senator Clemons) agreed to -
That after the word “ pounds,” line 8, the words “ for each such offence “ be inserted.
Amendment (by Senator Keating) agreed to -
That the word “ the/’ first occurring, line 9, be left out, with a view to insert in lieu thereof the words “each such.”
Senator O’KEEFE (Tasmania). - I think that the words “ and could not with reasonable care have ascertained” should be left out. The Minister has indicated that the proviso sufficiently safeguards the proprietor, tenant, or occupier of a theatre or place of public entertainment. I submit, however, that the owners of halls cannot be expected to be conversant with the law of copyright, and that in many cases it would be impossible for them to ascertain whether a work to be performed was copyrighted. The intentions of the proviso will be met by striking out the words to which I take exception, and then the onus will rest upon those who claim to have copyright to prove that the proprietor, tenant, or occupier knew he was infringing the law.
– It would be very difficult to prove.
– The proprietor, tenant, or occupier would even then nave to prove to the satisfaction of the Court that he did not know that the work was copyright.
– A very clever proprietor would be able to dodge all knowledge. He would take care not to know anything.
– The Court would have to be convinced that he did not know that the law was being infringed. We shall be doing a grave injustice in many cases if we make the owner of a theatre or hall prove that he had taken sufficient care. Those who have had to do with mining centres, which spring up like mushrooms, know how places of amusement are opened. These places are owned by honest men, who, however, cannot really know much” about copyright. I do not know how they could ascertain whether the persons who hired the hall had infringed the law. If the agent of a performing, company says that the work to be performed is not copyright, how is the owner of the place of entertainment to ascertain whether his statement is true or untrue? What reasonable care could he be expected to exercise?
– We have passed a similar clause dealing with books, though there may be booksellers in the “ Wild West “ as well as owners of halls.
– If we have done wrong in regard to books thereis no reason why we should do further wrong in regard to halls. Within my own experience I know of cases where there would be a great chance of injustice being done. The interests of owners of copyright would be sufficientlyguarded if we left out the words, leaving the owner of the hall to prove to the satisfaction of the Court that the work performed infringed copyright.
– At the request of Senator O ‘Keefe, who is now unavoidably absent, and which he conveyed to me during the adjournment for lunch, .1 beg to move -
That the words “ and could not with reasonable care have ascertained,” lines 19 and 20, be leftout.
– As one who has had some experience in bush towns, I am firmly of opinion that no man ought to undertake the occupancy of a large hall or theatre without first acquainting himself with the conditions and dangers such a position implies ; and, therefore, I cannot see my way to support the amendment. In every occupation of life certain qualifications are required, and a man who has a trust to fuffil ought to ascertain the law. We must think of those whose rights are being interfered with, as well as of persons who rent buildings for performances.
Clause, as amended, agreed to.
Clauses 52 and 53 agreed to.
Clause 54 -
Penalty : Ten pounds. (2) a person’ shall not give any notice in pursuance of this section without just cause.
Penalty : Twenty pounds.
– During the second-reading debate- I called attention to the inadequacy of the penalty provided in sub-clause 2, and I know that the Minister has circulated a new clause, 54A, to deal with the point. Under the circumstances, is it not necessary that we should strike out sub-clause 2 ?
– I do not think it necessary to strike out sub-clause 2, because the two cases which Senator Pearce has in view are entirely different. In this clause we give the owner or his agent power to forbid the performance of his work in. a particular place; and if the work be performed in violation of that notice a maximum penalty of £1.0 is provided. As to sub-clause 2, the owner or agent may take advantage of the provision to serve a notice on a person who has no intention to infringe any right; the notice may be served for the purpose of causing annoyance to, or casting a certain amount of obloquy upon him. In such a case it could not be held that the person who gave the notice was not the author or agent. Then there may be a case in which an owner or agent served a notice recklessly or wantonly, without reasonable cause, and for this offence he may be prosecuted, when the onus of proof of just cause will lie on him. Unless in such a case the person who served the notice can prove that he Had reasonable grounds to believe his right was about to be infringed, he will be held to have given notice without just cause. But the case referred to by Senator Pearce on the second reading was that of a person who has no right whatever - a person who is neither the owner nor agent, but who takes advantage of this provision to serve a notice on another person. This would not be a case of excess of zeal, or of acting recklessly in the discharge of a function, legitimate enough under certain circumstances ; and the proposed new clause 54A will make a person so offending liable to imprisonment for a term not exceeding two years. That clause, of course, refers to an outsider who is neither owner nor agent, but who seeks to intimidate another by means of a notice, -and to thus interfere with the legitimate performance of some production. Such an offender is really guilty of false pretences.
Senator PEARCE (Western. Australia). - Does the Minister think that a fine of £20 is sufficient to meet the case of a person who gives a notice of the kind without just cause?
– The honorable senator passed a corresponding penalty for a corresponding offence in the previous clause.
– The cases are quite different. The difference between infringing the copyright of a book or artistic work, and infringing the performing right of a dramatic or musical work is that the latter may have taken weeks in preparation, during- which time salaries and other expenses have accumulated. Perhaps the very day before the performance a person, without just cause, may give notice under this clause, and then those people who have incurred expense in the preparation for the performance of a dramatic or musical work are to be prevented from proceeding further.
– And properly so, if there is going to be an infringement of another man’s right.
– That point would not be settled until the case came before the Court.
– If no infringement is going to occur, no attention need be paid to the notice.
– But a man may think he has a right to give a performance of a certain piece where he has no right. The case of the Cingalee has recently attracted great attention, and doubtless there it was thought that a bond fide right to perform existed.
– Those who produced that piece decided to run the risk.
– That was the case undoubtedly.
– At any rate, when a man was prepared to risk such a large amount of money in mounting and producing the piece, he must have thought he had a pretty good case. The penalty of £20 is, in my opinion, much too small. The very fact of a penalty being provided shows that cases are contemplated in which a penalty should be inflicted ; but the expenditure to which a man would be put by unjustifiable interference might amount to an infinitely greater sum than that mentioned. Indeed, each day the performance was stopped might mean a loss of £50. I move -
That the word “ Twenty,” line 9, be left out, with a view to insert in lieu thereof the words “One hundred.”
Senator KEATING (Tasmania- Honorary Minister). - If an author or his agent gives notice in the form prescribed forbidding a performance, there must be one of two sets of circumstances - the person who proposes to give the performance must be either about to commit an infringement, or he must not. If the former, then certainly the owner or agent should have an opportunity to interfere; but if, on the other hand, it is proposed to give a performance, which is not an infringement, and the person about to give the performance, although he knows he is acting innocently, does not proceed with it, the other party ought not to be bound by reason of the consequences the former’s timidity. If the person who receives the notice is innocent, he may proceed with the performance; but if he fails to do that, as in the case contemplated by Senator Pearce, it appears to me that his loss would be attributable, not to this notice, but to his fear that serious consequences would ensue. We could not ask the other party to be punished for anything of that kind. The first person might go on performing, and if it were subsequently shown that his action was not an infringement of the other man’s rights, he could take proceedings, on the ground that the notice was sent without just cause, and the man who sent the notice would be liable to a maximum fine of ^20. We have provided, where the notice is disregarded, for a penalty of £10.
– Does that mean £10 for every day on which the notice is disregarded ?
– For every performance in infringement of a performing right, undoubtedly.
– And it is proposed that the other man shall be fined only ^20 altogether.
– This is merely to provide against a man giving such a notice recklessly. In the case of an outsider, who can have no shadow of a claim to a performing right, the penalty may be two years’ imprisonment. We have distinguished between what might be a bond fide excess of zeal and what would be an absolute sailing under false colours on the part of another person.
Senator PEARCE (Western Australia). - I think I must press my amendment. Senator Keating has pointed out that the penalty provided under the first sub-clause really means a penalty for each separate performance.
– So it should, if the performance is in infringement of another person’s rights.
– But it will be so also if the performance is merely in disregard of a notice.
– It must be if there is infringement.
– No, the penalty is imposed for not ceasing to perform when notice is given. I presume that when a notice is given an action of some kind will follow.
– Not necessarily; if the person giving the notice is satisfied on the performance ceasing.
– The man who has been conducting ‘the performance will defend his action if he is satisfied that he is right, and for every day on which the performance has been given in disregard of the notice, he may be fined .£10. In the case of the other man, if it should eventually be proved that his notice was given without just or reasonable cause, he is liable only to a maximum fine of ^20. I have pointed out that in addition to the penalty of ^10 for every day on which’ a performance is suspended the other man has to incur the ordinary expense of salaries, rent of theatre, and other attendant expenses. It seems to me that this penalty of £20 is entirely inadequate. If it is held that a penalty is necessary, it should be commensurate with the damage to which the other party may be put. .
– With respect first of all, to the man giving the notice, surely a penalty of .£20 is adequate to prevent him from entering a frivolous objection”? No man is likely to enter an objection without good grounds if he knows that he is liable to a penalty of £20 for doing so. Let us assume that the man who is thinking of giving the notice imagines that he has a just cause, though he may not be quite certain about it. If we provide for the enormous penalty of ,-f.ioo. we shall deter him absolutely from taking such action. He would probably say. “ If I go on with this, I shall probably, in any case, have1 to pay the costs in some action which will arise later on and thev will be stiff enough, but I find that under the Act I ana rendered liable to a penalty of £roo.”
– It would have to be proved that the notice was given without just cause.
– Senator Givens must see that the amendment would add largely to the risk a man desiring to give notice would have to undertake. A penalty of £100 would bet a great deal too heavy. As I have pointed out, a penalty of £20 is abundantly sufficient to prevent any man giving notice for the fun of it, or even for spite.
– When we take into consideration the possible damage which he might do to a rival, does the honorable senator think £20 a sufficient penalty ?
– I do. I do not think that any man would be so spiteful as to deliberately render himself liable to a fine of £20, when he knows that he has not a good cause for his notice. On the other hand, I think it would be very hard to make him run the risk of losing £100 if he takes action where he thinks he has a just cause.
– Following the remarks of Senator Demons, I point out that we have no parallel to a proposal of this kind in any of our existing legislation. If a man wishes to commence an action to-day. there is nothing at all to prevent him, and he is threatened with nothing more serious than the possibility of having to pay the costs of the defendant, if he should not make good his case. If a man has a performing right, and he assumes that it is being infringed, Senator Pearce proposes to provide that he shall not take action to vindicate his right without the risk of a penalty of £100, in addition to the ordinary risk of having to pay the costs of the other side. If I believe that I am injured in any way, and I go to the Court for redress, the Court may find that the grievance is imaginary on my part.
– But the honorable senator would not stop another man’s business?
– That would very often happen. I might apply for an injunction to restrain a man from continuing his business.
– It is possible to get an interim injunction in an hour that will last a month.
– I think that an application for an injunction ordinarily would be equivalent to a notice under this clause, and Senator Pearce would render a man applying for an injunction inthis case liable to the extremely heavy penalty of £100, in addition to his liability to pay the costs of the other side, if he did not succeed. The proposal, as Senator Cle- mons has said, would practically be a bar in a great many cases to a man seeking to prevent any infringement of his rights under this Bill.
Clause agreed to.
Amendment (by Senator Keating) agreed to-
That the following new clause be inserted : - “ 54A. Any person, who in any notice given in pursuance of this Act, makes a representation, which is false in fact, and which he knows to be false or does not believe to be true, that he is
the owner of the copyright in any book or artistic work, or
the owner of the performing right in a musical or dramatic work, or
the agent of any such owner, shall be guilty of an offence against this Act.
Penalty : Two years’ imprisonment.”
Clause 55 -
Penalty : Twenty pounds.
– It seems to me that in this clause it is proposed to give altogether too great a power to an ordinary constable without some preliminary inquiry. If honorable senators will refer to clause 52, they will find that in somewhat similar circumstances the owner of the copyright has to apply to a justice of the peace for a warrant to effect the seizure of books offered for sale. Under this clause it is proposed that books may be seized in a house, or in a shop, though they are not offered for sale. It appears to me that there is nothing to justify the different machinery provided in this clause as compared with clause 52.
– An individual is given the same power under this clause that is given to a justice of the peace under the other clause.
– Exactly. Under this clause, any private individual who is the owner of the copyright may take action which will set a constable in motion to seize pirated books and works. Even if the principle of the clause is assented to, I direct the attention of the Minister to the fact that there does not appear to be provided in the clause anything more than the power; to seize. It may be necessary to give the power to enter in order to give the power to seize, and unless the power to enteris given, the power to seize may be a nullity. Of what use is it to say that a man. may seize books in my house if he is not given the power to enter the house ? . Again, I should like to know what protection, a constable has under this clause if he makes a seizure which is subsequently shown to be an illegal seizure? Who is to idemnify him? If there is no power of indemnification, I venture to say that no constable would act under this provision.
– I think that in most cases of this kind a constable asks for an indemnity from the person setting him in motion.
– He may be a man. of straw.
– Then he would not take his indemnity.
– Then the constable is left a discretion as to whether he shall go or not?
– That is the position.
– If that is so, at appears to me that the clause is not worth the paper it is written on. The main objection I have to the provision is that it is giving an interested party - the owner of the copyright - power to set a constable in motion to do certain things which under ordinary circumstances, even under this Bill, are only to be done when a justice of the peace has issued his warrant.
– There is a distinction between the two clauses. Clause 52 provides that a justice of the peace -
If satisfied by evidence that there is reasonable ground for believing that pirated books or pirated artistic works are to be found in any house, shop, or other place may issue a warrant which would enable the person warranted to enter and seize them. That deals with a case of pirated productions .which are to be found inside houses and shops. In clause 55, however, provision is made for enabling an individual to set a constable in motion to seize pirated reproductions of copyright works which may not be in shops or private houses. It is analogous to the provision which was made in Great Britain so recently as two years ago. It will be remembered that within the last month or six weeks we saw a cablegram in the press, saying that some thousands of copies of pirated music had been seized in London by the police. That was done in exercise of a power which is given by the Musical Copyright Act of 1902, and which is analagous to the power purported to be given here. It was found that, no matter how stringent the provisions against piracy and the sale of pirated musical productions were made, they were never effective, and so late as 1902 the British Parliament passed an Act containing this provision -
If any person shall hawk, carry about, sell, or offer for sale any pirated copy of any musical work, every such pirated copy may be seized bv any constable without warrant, on the request in writing of the apparent owner of the copy, right in such work, or of his agent thereto authorized in writing, and at the risk of such owner. *
On seizure of any such copies, they shall be conveyed by such constable before a court of summary jurisdiction, and on proof that they are infringements of copyright, shall be forfeited or destroyed, or otherwise dealt with as the court may think fit.
– That is the case of a man selling or offering for sale a pirated production ; but this clause goes further than that.
– In clause 52 we have already dealt with the case of pirated reproductions being inside a house or a shop. Clause 55 does not purport to confer upon the constable , the right without a warrant to break and enter premises, and therefore he will only be able, on getting notice in writing from the owner of the copyright, to seize such works as he may find without committing any offence in the way of trespass or anything of that character. A number of these pirated productions are sold in. the streets of London, as doubtless some honorable members have observed. In the case which was reported by cable some weeks ago, the pirated reproductions were seized mostly I think from hawkers in the streets. It is desirable in some instances that the owner, of :the copyright should not be! required to take out a warrant, but should be able to act most summarily and expeditiously. When I was in Hobart early this year I read in the weekly edition of the Times a letter from Sousa, the celebrated composer of band music, in which he complained about the way in which his music was offered for sale on the streets of London within a few hours of its production. The letter reads as follows : -
The question of music piracy has been so fully exploited, that it is not my desire to enter upon any general discussion of the case, but, if you will permit me to encroach upon your valued -columns, . I should like to invite your attention to the international aspects of the question. The British Government participated in the Berne Conference of 18S5 and 1887, and the International Copyright Convention, which resulted, was adopted in full by English Orders in Council, which were intended to afford foreign authors and composers protection for their works in Great Britain, in return for reciprocal advantages for British authors and composers in the- other countries parties to said agreement. In 1891 the United States of America agreed upon terms of international copyright with the countries comprising the Berne Convention, including Great Britain. As far as Great Britain is concerned, this international copyright agreement has proved a delusion and a snare, because no foreign author or composer is protected in his rights here.
To the best of my belief, music piracy does not exist in any country where there is an international copyright law in force, except Great Britain. Certainly, it has been unknown in the United States since 1891, and when a British subject has complied with the copyright laws of my country, he is immediately clothed with clearly, denned legal rights, which are protected for him by the strong arm of the American law. I know that my compositions, after having been entered for copyright in Germany, France, Belgium, &c, are not stolen, and only in Great Britain do I fail to receive the complete protection for my music, which was clearly the intention of the Berne Convention, and the subsequent copyright agreement with the United States. Reciprocity is of no value if it does not reciprocate.
I have before me a pirated edition of my latest composition, which was printed and hawked about the streets of London, within a few days of the authorized publication of this march, at a price at which my publishers could not afford to print it. And this has been the case with all my compositions in Great Britain for several years. It nas had the effect of practically stopping the sale of my genuine publications, thus depriving me of the substantial income from that source that the popularity of my music in this country gives me every reason to expect.
I am informed that the opposition of one of the law-makers of this country has heretofore prevented the enactment of proper legislation to remedy this evil. Whatever reason this gentleman may have for refusing the British composer the legitimate return for the work of his brain, I certainly deny his right to say that the American composer must come under the same ban, when the international copyright treaty guarantees to the American composer the same protection in Great Britain that he enjoys at home. It is reasonable to suppose that any country would have expended the time, trouble, and money to establish an international copyright agreement with this country except with the full belief that Great Britain would faithfully fulfil the terms of that agreement.
If, subsequently, Great Britain discovered that her laws were too lax to give the foreign composer the protection guaranteed him, I submit that it then became incumbent upon His Majesty’s Government to enact such legislation as would protect the foreign composer in his rights under the Berne Convention.
In short, when other countries are honorably carrying out the terms of a treaty to which Great Britain was a party, it seems to me that the national honour and pride demand that immediate steps be taken to fulfil the treaty obligations of this country in the matter of international copyright.
It was not very long after I read that letter that the Melbourne press published a cablegram, stating that on the streets of London the police had made an immense seizure of pirated music, running into some thousands of copies.
– How long would it take the owner of the copyright to get a warrant? Only ten minutes.
– It may take the owner of the copyright ten minutes or it may take him a day, but in the meantime scores, if not hundreds of copies, of the pirated work may be sold, to his great prejudice. I do not think that we can do wrong if we allow the owner of the copyright, at his own “risk, to request a constable to seize any pirated copies which may be. not inside a house, but on the streets, and bring them before a court of summary jurisdiction to be dealt with. We are only following in the wake of English legislation.
Senator MILLEN (New South Wales). - It seems to me that the Minister has evaded the point I brought under his notice. He has pointed out that clause 55 is necessary in order to enable a constable to seize copies of pirated music which are being sold or offered for sale on the streets. Clause 52 distinctly provides that if a magistrate is satisfied bv evidence that there is reasonable ground for believing that pirated books or pirated artistic works are being sold or offered for sale, he can issue a warrant. That clearly applies to pirated works which are being; sold on the streets, but when we come to clause 55, which the Minister says is specially designed to meet the case of pirated .works being sold on the streets, we find no reference to the issue of a warrant. If it is intended in this clause to give the constable power to seize the goods which are being sold on the streets only, it ought to have followed the language used in clause 52, and provided that the magistrate shall act upon a notice received from the owner of the copyright.
– A man may be bringing pirated works along the street, and not offering them for sale at all. They may be intended for subsequent sale.
– Why should we, in clause 52, provide for the issue of a magistrate’s warrant, and in this clause leave the constable to act on a request from the owner of the copyright? I know of no precedent for giving to an ordinary constable this vast power to be set in motion at the instance of an interested party.
– This power is given in the English Act of 1902 just quoted.
– It seems to me that certain honorable senators are quite satisfied with a provision if it is to be found in an English Act, but it should be remembered that there was a time when the stealing of asheep in England was a matter of hanging. I am not prepared to give so large a power to a constable unless it is shown clearly where it is to be exercised. In this clause nothing is said as to the circumstances in which the constable may seize pirated works, or the places in which they are to be located.
– Senator Millen wishes to know why the language of clause 52 has not been employed in this clause. The former clause deals with what may be described as normal offences, and provides for the ordinary procedure. But clause 55 has a practical object in view, and that is to prevent pirated works from being sold at, amongst other places, street corners, and to enable the owner of the copyright to promptly prevent their sale to his detriment. Suppose that Senator Millen owned the copyright in a piece of music, and he found that at 100 street corners in London pirated copies of his work were being sold at the rate of 100 per hour. What sort of comfort would it be to him if he were told that he could only stop their sale after getting a magistrate’s warrant issued? He would probably reply that before he could get a warrant £100 worth of the pirated work might be sold, and that he would have no redress. It is not a question of lodging a notice at a police station, although a police station is a much more accessible place than a magistrate’s office. It will, in practice, be a great deal easier to stop the rapid sale of pirated goods by requesting a police constable to seize them, than to take the offender before a magistrate. I have not the slightest doubt that this clause is absolutely necessary to protect the rights of musical composers in the first instance; and that secondly, it is a proper corollary of clause 52. There is a question as to a police constable being employed at the request of a private citizen to seize goods. But I am satisfied that it would be held by a Court that a constable, in such a case, would be acting as agent for the man who instructed him and not in ‘his official capacity, with such right of indemnity as we know police constables possess. The clause is intended to give a ready remedy to a person who thinks that his rights are being trespassed upon. It enables a rapid sale to be stopped in a practicable and effective way. If this provision were not in the Bill, many of its provisions would be useless. Clause 52 would enable the owner of copyright to get a warrant from a magistrate to seize a lot of pirated things that were being sold in the ordinary course of business, but if they were being sold at one hundred places in an irregular way, the owner would be powerless. The sales would be going on at one hundred street corners, and the owner would have to get one hundred warrants. I shall not vote for any alteration.
– No less than 287,000 copies of pirated pieces of music were seized in London on 26th July.
Clause agreed to.
Clause 56 agreed to.
Amendment (by Senator Keating) agreed to-
That the following new clause be inserted : - “ 56A. Whoever aids, abets, counsels, or procures, or by act or omission is in any way, directly or indirectly, knowingly concerned in the commission of any offence against this Act, shall be deemed to have committed that offence, and shall be punishable accordingly.”
Clauses 57 and 58 agreed to.
Clause 59 -
– I have no doubt that this clause, like all the other clauses of the Bill, is quite right, but it seems to me, nevertheless, that there may be some confusion in the use of the word “ Minister,” owing to the manner in which he is to be communicated with. I quite understand that the Minister referred to is the Minister administering this measure. The clause provides that a variety of things are prohibited imports, and there is machinery by which the Minister is to be made aware that they are pirated, in order to stop their importation. Sub-clause 4 provides that the provisions of the measure shall not apply to any artistic work unless the owner of the copyright or his :agent has given notice to the Minister. But the following sub-clause proceeds to say that it will be sufficient if notice be given to the Commissioners of Customs of the United Kingdom.
– I think that subclause 5 is. foreign to the clause.
– It seems to me to be quite unnecessary, having first stated that the owner of the copyright or his agent shall inform ‘the Minister, to sayafterwards that he need only inform the Commissioners of Customs of England. Does it follow that the Commissioners would inform the Minister in Australia?
– They are bound to do so by law ?
– What law?
– By the Customs Law Consolidated Act.
– I see no reason for departing from the simplicity of the subclause, which throws upon the owner of the copyright the obligation to inform the Minister in Australia.
– Why not do it direct?
– Exactly. It is better to have a regular and simple method by which the notice can be given to the Minister.
– We are providing here that the provisions of the copyright law shall not apply to any book or artistic work unless the owner of the copyright gives notice to the Minister of the existence of the copyright and its terms. Obviously, the’ owners of copyright in Australia, would give notice direct. But with regard to international and Imperial copyrights, notice would invariably be given to the Commissioners of Customs of the United Kingdom1, and ft is provided bv the Customs Law Consolidation Act 1876 that- any book wherein the copyright shall be subsisting first composed or written or printed in the United Kingdom, and printed or reprinted in any other country, is absolutely prohibited to be imported into the British Possessions abroad, provided that no such book shall be prohibited to be imported as aforesaid, unless the proprietor of such copyright or his agent shall have given notice in- writing to the Commissioners of Customs that such copyright subsists, and in such notice shall have stated when the copyright will expire.
The Act in section 152 provides -
Any books wherein the copyright shall be subsisting first composed or written or printed in the United Kingdom, and printed or reprinted in any other country, shall be, and are hereby absolutely prohibited to be imported into the British Possessions abroad : Provided always that no such books shall be prohibited to be imported aforesaid unless the proprietor of such copyright, or his agent, shall have given notice in writing to the Commissioners of Customs that such copyright subsists, and in such notice shall have stated when the copyright will expire ; and the said Commissioners shall cause to be made and transmitted to the several ports in the British Possessions abroad, from time to time to be publicly exposed there lists of books respecting which such notice shall have been given, and all books imported contrary thereto shall be forfeited; but nothing herein contained shall be taken to prevent Her Majesty from exercising the powers vested in her by the Colonial Copyright Act 1847, to suspend in certain cases such prohibition.
It will be seen that as to works which are copyrighted Imperially, or which have the benefit of international copyright, notice may be given, and will, in all instances, be given to the Commissioners of Customs in Great Britain, who are bound to keep a record of them, and who are also bound by law to transmit to the ports of all British Possessions abroad copies of their lists. It would be highly disadvantageous if we were not to take advantage of this provision. An author copyrighting a book in the United Kingdom would naturally give notice to the Commissioners of Customs there, and he would read in the English Statute that that notice having been given, would be transmitted to all British Possessions abroad. He would not know that under the Australian Act that would not be accepted as a notice. He would be misled entirely. The English Commissioners of Customs would still send out their notices to us, as they are bound by law to do, and we should be putting ourselves in a false position if we did not accept them as sufficient.
– I am not quite sure that the words “ all pirated books “ and “ all pirated artistic works,” used in the first sub-clause, include everything that ought to be included. It is not clear that, according to the interpretation clause, dramatic works are included in books and artistic works. Under the definition of “dramatic work” there are, for instance, the librettos of operas, lyrical . works set to music, and scenic or dramatic compositions, which ought equally to be open to seizure by the Collector of Customs.
-A dramatic work, if published, becomes a book.
– But “book” has an interpretation of its own.
– A dramatic work, if published, would come under the definition of book, because it would be a volume ; but, if in manuscript, it would not be a book.
– Of course, I am not sure on the point, but it would be a pity if such works were allowed to escape. I have no doubt that, if there is an omission, it will be provided for by the Minister.
Amendment (by Senator Keating) agreed to-
That the following words be inserted at the commencement of sub-clause 3, “Subject to this Act.”
Clause, as amended, agreed to.
Clause 60 -
The owner of any copyright or performing right in any literary, musical, or dramatic work or artistic work entitled to protection inAustralia by virtue of any Act of the Parliament of the United Kingdom or entitled to protection in any State by virtue of any State Copyright Act shall, on obtaining a certificate of the registration of his copyright or performing right under this part of this Act, have the same protection in the Commonwealth against the infringement of his copyright or performing right, as the owner of any copyright or performing ‘right under this Act.
– If I understand the position aright, the passage of this Bill will still leave in existence the States laws, and also the Imperial laws.
– The State laws under this clause apply only to rights which are in existence when this Bill comes into operation.
– That is just the point on which 1 desire to be clear. This clause proposes that the holder of any right under a State law may, by registration, secure the protection of this Bill. It seems to me possible that, although this Bill may be passed, some one may seek to obtain copyright under a State copyright law.
– Clause 12 prevents that.
– That clause deals only with the administration of existing States laws. The laws themselves are left in existence. I am not speaking with any certainty on the question, which is surrounded by a great deal of doubt. I merely present the matter for attention in order that we may not pass a clause which will cause very grave difficulty.
– Clause 8 provides that the States Acts shall not apply.
– That does not quite get over the difficulty, because clause 8 merely provides that the States laws shall not apply to copyright which subsists under this Bill.
– All copyright subsists under this Bill, if the publication be after the Bill has come into force.
– But it may be that in some of the copyright laws of the States there are provisions which are absent from this Bill, and, in some particular, a man may be able to secure a right under a State Act, and then claim to have it registered under the Bill.
– It is a very difficult situation to meet.
– It is a situation which we cannot evade by merely passing this clause. I certainly would hesitate to now suggest an amendment, which might, as the clause itself does, reach outside the limits of the Bill. I take the object of the clause to be that, where a person holds a right under a State law, he may, by registration, get that right recognised under the Commonwealth law. But this clause clearly applies to a right existing prior to the passing of the Bill ; and my idea is that under the clause a right may be secured under a State Act after the passing of the Bill - some right which this Bill does not convey - and that a claim may then be made to have it registered under the Bill. If the Minister is not prepared with a definite answer now, I feel satisfied that before the final disposal of the measure he will give the matter further consideration.
– The draftsman finds himself confronted with a difficult and delicate situation when he deals with Commonwealth legislation in respect of which the States, to a certain extent, exercise concurrent powers; and Imperial legislation further complicates the matter. Early in the year, in my professional capacity, there came under my notice a recent Canadian case, which gave me ground for some little surprise. It was not a case dealing with copyright, but had relation to the respective powers of the Dominion and the provincial Parliaments, where they meet on common ground. The case was that of -the Attorney-General of Ontario v. the AttorneyGeneral of the Dominion; and in the course of the lengthy judgment of the Privy Council, delivered by Lord Watson, and reported at page 366 of the Law Reports, Appeal Court, 1896, there appears the following: -
It has been frequently recognised by this Board (the Privy Council), and it may now be regarded as settled law, that according to the scheme of the British North American Act the enactments of the Parliament of Canada, in so far as these are within its competency, must override provincial legislation. But the Dominion Parliament has no authority conferred upon it by the Act to repeal directly any provincial statute, whether it does or does not come within the limits of jurisdiction prescribed by s. 92.
I take it “that that judgment would apply equally to the operation of our own Constitution - that this is settled law, unless the Privy Council reconsider and alter their view.
The repeal of a provincial Act by the Parliament of Canada can only be effected by repugnancy between its provisions and the enactments of the Dominion ; and if the existence of such repugnancy should become matter of dispute, the controversy cannot be settled by the action either of the Dominion or of the provincial Legislature, but must be submitted to the judicial tribunals of the country.
If this dictum of Lord Watson is equally applicable to our conditions - and I do not see why it should not be if it is applicable to Canadian conditions - when we legislate on the subject of copyright, we have no power under the Constitution to expressly repeal any State Copyright Act. But. if we insert in our Copyright Bill provisions which are repugnant to or inconsistent with State legislation, then, by virtue of that inconsistency and the operation of the Constitution, the State legislation is overridden. If, however, as Senator Millen suggests, there are in the States Acts provisions which are not repugnant to or inconconsistent wth the Commonwealth copyright legislation, the question arises - Does that State legislation remain in force?
– I am inclined to think that it does, and, at any rate, I am in excellent company in thinking so. The Canadian case was argued at great length in the Canadian Courts, and before the Privy Council, Mr. Blake being one of the counsel. Wherever State legislation is inconsistent with ours it is repealed.
– It is inoperative rather than repealed.
– Exactly 3 that , is the effect. But if there is some provision of it that is not inconsistent with our legislation it is not repealed, and is not inoperative. As pointed out by the authority I have quoted, the repeal can only be effected by repugnancy plus the operation of -the Constitution. The point raised by Senator Millen will certainly receive attention. We desired to frame a clause as comprehensive as we could to give effect to existing rights, and we did not desire to leave any loophole for persons hereafter under State legislation to come in and acquire an extension of certain rights under the provisions of the clause under consideration.
– The position taken up by the Minister, and supported by certain authorities, appears to me to be somewhat peculiar. The contention is that the Commonwealth Parliament, by taking action under section 51 of -the Constitution, cannot take any force from States laws unless they are repugnant to laws which we may pass. I think I need only cite one instance to show that the very fact that we have entered upon legislation in pursuance of any .one of the thirty-nine powers conferred upon us by section 51 of the Constitution supersedes all States legislation on that subject. I refer Senator Keating to the case of the Commonwealth Customs Act. In passing that measure we did not attempt to repeal any of the Customs Acts in force in the six States, but will the honorable senator tell me that, although we have legislated on that matter, the States can yet pass .Customs Acts, so long as they are not repugnant to the Commonwealth Act?
– The honorable senator’ forgets that Customs are exclusively within our jurisdiction.
– So is copyright. Every one of the thirty-nine articles set out in section 51 of the Constitution are placed exclusively within our jurisdiction.
– Will the honorable senator show me that there is any difference whatever in the language »used in referring the powers to deal with copyright to this Parliament and that used in referring the power to deal with trade and commerce ?
– I shall read the section. Section 51 of the Constitution provides - -
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth, with respect to : . . . .
Copyrights, patents of inventions and designs, and trade marks.
– That is not the whole of the Constitution.
– It is the whole of the provision, referring this matter specifically to the Commonwealth Parliament, and I maintain that every one of the powers conferred under section 51 are within our exclusive jurisdiction.
– Where is the reference to Customs in that section?
– The power to deal with Customs is part and parcel of the power conferred by sub-section 1 of section 51, to legislate with respect to trade and commerce.
– No; Customs is dealt with separately.
– Will the honorable senator say in what part of the Constitution it is dealt with separately ? The only way in which it can be said to be dealt with separately is that under the Constitution we. are given the exclusive power to impose Customs taxation.
– And in section 69 also, which provides -
But the Departments of Customs and Excise in ‘each State shall become transferred to the Commonwealth on its establishment..
– And in the same way every power dealt with in section 51 is transferred to us immediately we legislate in connexion with it.
– According to the honorable senator’s argument, if we passed a Census and Statistics Bill, no State could have such a measure. The power to deal with census and statistics is included in section 51, under sub-section xi.
– Census and statistics are not exclusively transferred to us.
– No more than is copyright.
– We can make laws in pursuance of every one of the powers conferred under section 51, which will supersede States laws dealing with the same subject.
– Undoubtedly we can.
– Where the States laws are in conflict with our laws.
– If the honorable senator will look at section 52, he will find enumerated there certain matters in regard to which” we have exclusive jurisdiction.
– It is evident that we have jurisdiction to deal with this matter, and it is also evident that our legislation dealing with it must be supreme.
– Undoubtedly, if there is any inconsistency with the States legislation.
– Then why should we hesitate in the matter.
Senator MILLEN (New South Wales).If Senator Givens will compare section 51 of the Constitution with the section to which I referred him, he will see at once the difference between matters in which the Federal Parliament has exclusive jurisdiction, and those in which it has only concurrent jurisdiction. Section 52 enumerates three matters in respect of which the Commonwealth Parliament has exclusive jurisdiction, while section 51, to which Senator Givens has referred, merely says tha-. “ Parliament shall, subject to the Constitution, have power “ to make certain laws. The word “exclusive” is not used in that section.
– The power is exclusive all the same.
– Then what is the meaning of the word “ exclusive,” as used in. section 52 ?
– I think it is unnecessary.
– If Senator Givens will refer to section 109, he will find that it was clearly contemplated that the jurisdiction conferred under section 5.1 should be concurrent, and that conferred under section 52 exclusive. In view of the fact that the jurisdiction conferred under section 51 is concurrent, the framers of the Constitution say in section 109 -
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
That leaves any portion of a State lav which is not inconsistent with, or repugnant to, the Commonwealth law still in force. I am rather glad that this reference to the Constitution has been made, because it clearly strengthens the position I put before the Committee. That it might happen that in State copyright laws there were some provisions not inconsistent with our copyright legislation.
– For instance, copyright in designs.
– Those provisions will still remain in force. By this clause we transfer the administrationof still vital States Acts to our own officers, but we do not repeal them by that transfer. Copyright might be obtained under one of the States Acts in a way in which we would not grant it under our Copyright Act, and the owner could, under clause 60, get it registered under the Commonwealth Act. He could therefore, by means of the machinery provided by the Commonwealth Act, get a copyright which we do not propose to confer. I think that the clause should be amended in some way to make it quite clear that it applies only to rights obtained under States laws, and existing at the time of the passing of this Bill. After that, whilst it is perfectly true that any one could apply to secure a right under a State law, he would not be entitled to get it registered under the Federal law. He would hold his right under the State law only, and with State limitations. He would not be entitled, then, having secured an advantage possibly limited to the State by the State law under which it would be operative, to secure by registration under the Commonwealth law an advantage which our Act does not directly confer.
– I do not know whether Senator Keating proposes that this clause should be passed as it is. I at present feel inclined to go somewhat further than Senator Millen. Whilst I recognise that section 109 of the Constitution provides that a law of a State shall be invalid only to the extent of its inconsistency with a Commonwealth law, I can quite conceive that under a copyright law there might be something in addition which we have not put into this Bill but which would not come under the definition of inconsistency. If so, it seems to me that an ingenious man who has obtained copyright under a State law which gives him more extended rights, but at the same time quite consistent with the legislation we are passing, might by registration under this clause secure a right which we are not inclined to give. It would be better to postpone the clause. I am sure that it does not meet every contingency which it is desirable it should meet. If the Committee is prepared to say that if under a State copyright law some one has now or may hereafter acquire certain rights which he could not acquire under this Bill, but which are not inconsistent with it, we should not interfere, we may be giving a special advantage to a man because he happens to live in a certain State. Personally I do not think that would be a Federal thing to do, and I can conceive that there might be some rights conferred under States laws which would not be inconsistent with this law.
Senator KEATING (Tasmania- Honorary Minister). - In answer to the criticisms of Senators Millen and Clemons, I would say that the object of this clause is simply to provide that in the case of these copyrights in Australia they shall all, when this Bill is passed, be put on the same plane in regard to remedies for infringement and other matters dealt with in the main portions of the Bill. I can realize the possibility that there may be some class of copyright, perhaps not touched by this Bill, which’ is still included under a State Copyright Act. Senator Millen has pointed out that a person acquiring a copyright under a State Copyright Act hereafter may endeavour, under clause 60 of this Bill, to get that copyright extended throughout the Commonwealth, as provided in this clause. But I think that the difficulty he foresees can be met by adding to the definition of State Copyright Act in clause 4 the words, “ in force at the time of the passing of this Act.”
– The Minister will prepare an amendment of the interpretation clause, to give effect to this provision ?
Clause agreed to.
Clause 61 -
– I do not know whether the registrar of copyrights, like the Governor-General,is regarded as a gentleman in respect to whom it is not considered courteous and proper to use the word “ shall.” In the first sub-clause, swe lay down) the conditions which will entitle the holder of an international copyright to secure registration, and in the second sub-clause, we ought not to use any word which will permit the registrar to exercise an. option when he has been satisfied that those conditions have’ been complied with. On a previous occasion the Minister referred to the use of the word “may”, in other Acts. But if he will refer to the Electoral Act he will find that when an elector ‘has proved his right to be on a roll it is provided that the registrar shall grant his application. In that case the Act secures to the individual a right. In this case it will be exactly the same. Therefore I move -
That the word “may.,” line 1, be left out, with a view to insert in lieu thereof the word -‘ shall.”
– 1 do not wish to discuss at length this point, as it was discussed on a previous clause. It is desirable that, we should preserve uniformity in the drafting of our provisions.
– Uniformity of error.
– I do not think it is uniformity of error, because the word “ may. “ is invariably used- in such cases in connexion with public officers. When it is provided, as it is here, that under a certain set of circumstances an officer may issue a certificate, or may put a man on the register, the Courts ‘ have invariably construed the word “ may “ asmandatory if it has appeared that the conditions precedent to the exercise of the power .or the discharge of the duty have been duly complied with’.
– Why was not that course followed in. the case of the Electoral Act?
– I do npt know, and I am pot dealing with, the Electoral Act now.
– When that Act does not suit the Minister, he takes another Acf
– Last night I quoted some Acts in which the word “ may “ is used.
– The Minister did not quote the Electoral Act.
– - Last night I quoted the Summary Procedure Acf, because the word “ may “ in sections thereof has been interpreted by the Courts to mean “shall.” I quoted various decisions on the point from Maxwell on the Interpretation of Statutes. I ask honorable senators to adhere to the form of drafting which has been followed in the Commonwealth; as well as in the States, and which is usually followed in the old country. Once wedeviate, unless it Be done uniformly, we shall be likely to create all kinds of doubt in the minds of those who will have to administer or interpret the laws.
Senator MILLEN (New South Wales). -The great argument of the Minister is that by long usage the word “ may “ has become the recognised term to employ, and that every one knows when it is used in an Act it means “shall.” Why was not this argument used when the Electoral Act was under consideration, because it bristles with the word “shall”? Our legislation is not uniform when we use “ shall “ in an Act when we mean “ shall,” and use “may “ in an Act when we mean “shall.” If “may” in the Copyright Bill means”shall,” does “shall” in the Electoral Act mean. “ may “ ? When our principal Act was passed we used “snail “ when we meant “shall.” The. argument of uniformity has lost ali force, because it has long since been departed from. In the Electoral Act we commenced the much better principle’ of stating what we mean, and not leaving it to be assumed that the word meant something else;
Clause agreed, to.
Senate adjourned at 3.45 p.m.
Cite as: Australia, Senate, Debates, 29 September 1905, viewed 22 October 2017, <http://historichansard.net/senate/1905/19050929_senate_2_27/>.