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Copyright, Communication and New Technologies

Published online by Cambridge University Press:  24 January 2025

William A van Caenegem
William A van Caenegem*
Affiliation:
Bond University
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Extract

The Copyright Law Review Committee (CLRC) is to report in the near future on the desirability of major changes to the Copyright Act, with particular reference to the exclusive rights of the copyright owner. The Copyright Convergence Grouf (CCG) has already recommended significant amendments of a more limited scope. Behind the interest in law reform lies the impact of the “digital revolution”, permitting the production, storage, distribution and use of copyright matter in digital machinereadable form. Underlying the CLRC review is the belief that the rights and rewards of the copyright owner must be safeguarded from this new technological threat, primarily through the bestowal of broader rights. A further concern is that the Copyright Act has achieved a muddled complexity which only a clean sweep can now remedy, and that it cannot sustain any more incremental amendments. Thus the present Reference proposes a radical solution, the replacement of the specific enumerated rights with two broad rights of distribution and transmission.

Type
Research Article
Information
Federal Law Review , Volume 23 , Issue 2 , June 1995 , pp. 322 - 347
Copyright
Copyright © 1995 The Australian National University

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Footnotes

I wish to thank Peter Drahos of the Faculty of Law at the Australian National University and Michiel Elst of the Faculty of Law at the Catholic University of Brussels for their helpful remarks about an earlier draft of this article, and Professors Dennis Pearce and Tom Campbell for their comments. All viewpoints expressed in this article remain my own. I would also like to thank the Copyright Agency Limited and the Faculty of Law at the ANU for their generous support in the form of the CAL/ANU Copyright Fellowship which allowed me to complete this article.

References

1 Copyright Law Review Commission (CLRC), Terms of Reference on the Review and Simplification of the Copyright Act, February 1995 (Minister for Justice, The Honourable D Kerr MP).

2 Copyright Convergence Group (CCG), Highways to Change: Copyright in the New Technological Environment, August 1994.

3 Digitisation is the translation of copyright works or other subject-matter from analogue, human-readable form to digital, machine-readable form.

4 For some discussions of the relationship between scientific development, communications and intellectual property laws, see eg, R S Eisenberg, “Proprietary Rights and the Norms of Science in Biotechnology and Research” (1988) 97 Yale LJ 2 177; R J Kelly, “Private Data and Public Knowledge: Intellectual Property Rights in Science” 1989 13 Legal Studies Forum 365; JV Vilanilam, Science, Communication and Development (1993); also F Rushing, C Ganz Brown (eds), Intellectual Property Rights in Science, Technology, and Economic Performance: International Comparisons (1990). For a comprehensive analysis of some of the issues involved in the relationship between intellectual property and communication, see P Drahos, “Decentering Communication: the Dark Side of Intellectual Property” in T Campbell and W Sadurski (eds), Freedom of Communication (1994) 314.

5 Note T Campbell, “Rationales for Freedom of Communication” in T Campbell and W Sadurski, above n 4, 17. For a post-modernist view, see R J Coombe, “Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue” (1991) 69 Texas LR 1853. See also TI Emerson, “Toward a General Theory of the First Amendment” (1963) 72 Yale LJ 877.

6 In economic terms, the failure of the market to produce sufficient intellectual goods is remedied by the grant of monopoly property rights. See the economic analysis of copyright law in RA Posner and WM Landes, “An Economic Analysis of Copyright Law” (1989) 18 Journal of Legal Studies 325.

7 But within the common law tradition, the question whether copyright is a common law right or a statutory right in origin is sometimes still canvassed, although the issue was effectively laid to rest in the early case of Donaldson v Beckett (1744) 4 Burr 2408; 1 ER 837, where the House of Lords found against a perpetual common law copyright in published works. Although generally accepted, whether this was truly what the House held is sometimes still contested; see eg, F D Prager, “A History of Intellectual Property Law from 1545 to 1787” (1944) 26 JPTO 712. See also the detailed analysis in LR Patterson, Copyright in Historical Perspective (1968) at 158, where he points out that the court's preoccupation in Donaldson was with publishing and printing rights rather than with copyright as a whole. The other early leading case concerning the nature of copyright is Millar v Taylor (1769) 4 Burr 2303; 98 ER 201. In the United States, see Wheaton v Peters 33 US (8 Pet) 591 (1834).

8 In the sense that pre-emptive rights and freedoms operate to give more than ordinary weight to some interests in the normal balancing of interests that is the law, which may lead to express consideration of freedom of communication arguments in the law reform debate but also in infringement cases. A telling example is that of parody, where a whole work may sometimes be reproduced literally but contextualised so as to be clearly for the purpose of criticism of the author's ideas.

9 It is of course true that reproduction or the making of copies is not the only way in which a copyright owner earns an income from copyright works: other sources include public performance, either direct or through mechanical means, eg, sound recordings or cinefilms.

10 Some kinds of works or subject-matter are of course more acutely affected than others, eg,the copyright in artistic works may be less affected than that in literary works, since artistic works are often to a degree dependent on a specific environment.

11 W M Posner and RA Landes, above n 6; to some extent their article is concerned with the economics of imitation. The authors inter alia refer to the fact that borrowing from existing works limits the cost of expression, and excessive protection levels would therefore have a negative impact on the production levels of new works. One might add that when all works are either copyrighted or out of date, there is a clear incentive to create new works which does not necessarily exist in the absence of copyright law. Further, as a matter of practicality, popular fiction requires easy access to stock figures, expressions and formats to satisfy demand: look at everyday soaps for instance!

12 Eg, B Kaplan, An Unhurried View of Copyright (1967). He quotes Voltaire (at 78): “[Plagiarism] est assurement de tous les larcins le mains dangereux pour la societe”, from Dictionnaire Philosophique, Plagiat, in 42 Oeuvres completes de Voltaire 321 (1784). Note also the fact that authorship during the Renaissance was considered more a question of careful imitation of the ancient texts than was original creation.

13 See W M Posner and R A Landes, above n 6. The market for intellectual goods is imperfect because of free riding (ie the ability of competitors to avoid the costs of production of intellectual goods, but capture the competitive benefits, by copying and imitation), the marginal cost of production and the inability to capture benefits (ie intellectual goods are by nature social goods and inexhaustible). Appropriately balanced intellectual property laws must be relied on to correct market behaviour and to provide adequate levels of intellectual goods to the market.

14 I use the term property or property rights in the theoretical sense of absolute proto-legal and inherent rights recognised and limited by the law.

15 In theory, incentives could be provided by direct rewards rather than by providing intellectual property rights. For instance, in the erstwhile Soviet Union, the granting of an inventor's certificate entitled the inventor to a monetary reward but not to exclusive rights.

16 However, it cannot be argued that simply because the Copyright Act contains these explicitly targeted exceptions, its role of spreading knowledge and information and enhancing communication is therefore wholly fulfilled; the case law has recognised this, and in any case the interest in free communication is not restricted to the educational or any other limited environment in which the fair-dealing exception operates.

17 This can lead to restrictions in the scope of copyright protection, eg, where the work consists of an account of historical facts as opposed to invented facts, or cases where fact and expression are fused because there is only one possible way in which certain facts may be expressed.

18 See the dissent of Yates Jin Millar v Taylor (1769) 4 Burr 2303; 98 ER 201 at 232. Note also the arguments of counsel in Donaldson v Beckett (1744) 4 Burr 2408; 1 ER 837 at 849, to the effect that there can be no copyright in ideas. See also Hollingrake v Truswell [1894] 3 Ch 420at 427, where Linley LJ stated: “Copyright, however, does not extend to ideas, or schemes or systems, or methods; it is confined to their expression; and if their expression is not copied, copyright is not infringed”; and Football League Ltd v Littlewoods Pools Ltd [1959] 1 Ch 637. For a more recent analysis, see Autodesk v Dyason (No 1) (1992) 22 IPR 163 at 171- 172; and Autodesk v Dyason (No 2) (1993) 25 IPR 33. The breakthrough on this point in the United States came in Baker v Selden 101 US 99 (1879).

19 Note that the difficulty is particularly acute in cases of copying across different media, eg where a literary work has been reproduced in a cinematograph film. Reference is often made in this context to Learned Hand J's statement in Nichols v Universal Pictures Co (1930) 45 F 2d 119 at 121: “Copyright cannot be limited literally to the text, else a plagiarist would escape by immaterial variations”. Lahore has suggested that it is incorrect to say that there is no protection for “ideas” in copyright law; see J Lahore, Intellectual Property in Australia: Copyright (1988) at footnote 2.3.25. Others have pointed out that in certain cases, particularly regarding designs, courts have extended copyright so far that it does protect ideas. It is also interesting to note that under the United States Copyright Act, protection does not extend to “ idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied.”: 17 USCA Para 102.

20 The importance of the fair dealing exception to copyright further illustrates the desire to fit copyright within a structure conducive to free communication and debate about facts and ideas. Other aspects of the Copyright Act also underline this basic policy aim, eg the compulsory licences for educational use and for use in certain institutions assisting the handicapped, as well as in public libraries.

21 Note, however, the Licensing Act 1662 (13 and 14 Car II, c 33) and the Star Chamber Decrees of 1586 (transcribed in II Arber 807-812) and 1637 (IV Arber 528-536) which regulated the printing of books. There was also a separate practice of granting printing patents by Royal Charter.

22 For a general history of copyright law, see W Cornish, “Das Statute of Anne (8 Anne c.19)”in E Wadle (ed), Historische Studien zum Urheberrecht in Europa, Schriften zur Europaischen Rechts- und Verfassungsgeschichte, Band 109 (1993); B Kaplan, above n 12; F C Avis, The First English Copyright Act 1709 (1965); M Rose, “The Author as Proprietor: Donaldson v Beckett and the Genealogy of Modern Authorship” (1988) 23 Representations 51; S Ricketson, The Law of Intellectual Property (1984) at 57-81. See also FD Prager, above n 7, and LR Patterson, above n 7.

23 Before the advent of book printing, copies were manufactured laboriously by hand in monasteries or by specific groups of skilled artisans.

24 Note the Statute of Monopolies 1623 (21 Jae I, c 3) which abolished all privileges with the exception of those in writings and in inventions.

25 (1744) 4 Burr 2408; 1 ER 837.

26 LR Patterson, “Private Copyright and Public Communication: Free Speech Endangered” 28 Vanderbilt LR 1161 at 1173; and L R Patterson and SW Lindberg, The Nature of Copyright: a Law of Users' Rights (1991) at 126.

27 CLRC, Issues Paper: Computer Software Protection (1990); CLRC, Draft Report on Computer Software Protection (1993); CLRC, Final Report on Computer Software Protection (1995). Note also the European Union proposals concerning a new extraction right applicable to databases: EC Amended Proposal for a Council Directive on the Legal Protection of Databases, 4 October 1993, COM (93) 464 final - SYN 393, OJ, No C 308/1 of November 15, 1993. The CLRC in its Final Report has not recommended adoption of an extraction right. Note also that the Committee of Experts on a Possible Protocol to the Berne Convention, established by the World Intellectual Property Organisation, is investigating the inclusion ·of databases in a possible Protocol to the Berne Convention.

28 To derive information about the structure of a computer program it must be translated back from digital to source code, since in digital form it cannot be analysed. Such “reverse engineering” or decompilation necessarily involves infringing reproduction or adaptation of the program.

29 See above at 323-326.

30 “Congress shall make no law ... abridging the freedom of speech, or of the press”, United States Constitution Amend I. The United States Constitution grants Congress the power “to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”, United States Constitution art I, para 8, cl 8. The purpose of copyright is thus to secure “the general benefits derived by the public from the labours of authors”. On the general aspects of constitutionality of the copyright clause, see M B Nimmer, Nimmer on Copyright, Para 1. 10 at I-78: “Take the most important objective that underlies freedom of speech - the maintenance of the democratic dialogue. That process is also known as the marketplace of ideas, and not without reason. It is exposure to ideas, and not their particular expression, that is vital if self-governing people are to make informed decisions. It is important that we have free access to the ideas of both William F Buckley, Jr and John K Galbraith; and everyone should have the right to disseminate Buckley's and Galbraith's ideas, either by way of endorsement or criticism. But that process of enlightenment does not require the freedom to reproduce without permission either Buckley's book Up from Liberalism, or Galbraith's The Affluent Society. To reproduce the expression of their ideas may add flavor, but relatively little substance to the data that must inform the electorate in the decision-making process. Such minimal substance, lost through the copyright prohibition on reproduction of expression, is far out balanced by the public benefit that accrues through copyright encouragement of creativity.” Later he says: “In some degree it [the idea/expression line] encroaches upon the author's right to control his works in that it renders his 'ideas' per se unprotectable, but this is justified by the greater public need for free access to ideas as a part of the democratic dialogue.”

31 See M Sobel, “Copyright and the First Amendment: A Gathering Storm?” (1971) 19 Copyright Law Symposium 43; M B Nimmer, “Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?” (1970) 17 UCLA L Rev 1180; P Goldstein, “Copyright and the First Amendment” (1970) 70 Colum L Rev 983; RC Denicola, “Copyright and Free Speech: Constitutional Limitations on the Protection of Expression” (1979) 67 Calif L Rev 283; LR Patterson, “Private Copyright and Public Communication: Free Speech Endangered”, above n 26.

32 The “look and feel” method of analysing the question of infringement of a computer program is one way of approaching non-literal infringement of computer programs. The emphasis in this method is not on a comparison of the source or object codes, but on the appearance and functioning of the program when it is loaded on a computer, as displayed on a computer screen.

33 Eg, M J Haungs, “Copyright of Factual Compilations: Public Policy and the First Amendment” (1990) 23 Colum J L & Soc Problems 347; A C Yen, “A First Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work's Total Concept and Feel” (1989) 38 Emory LJ 393 (with criticism of the Broderbund case); LR Patterson and SW Lindberg, above n 26 ch 9: “Copyright and Free Speech Rights”. See also WE Lee,“Cable Franchising and the First Amendment” (1983) 36 Vand LR 867 and K J Burchfield, “The Constitutional Intellectual Property Power: Progress of the Useful arts and the Legal Protection of Semiconductor Technology” (1988) 28 Santa Clara LR 473.

34 Eg, Smith v California 375 US 259 (1963) (concerning Tropic of Cancer); Lee v Runge 404 US 887 (1971) at 200, where Douglas J observed: “Serious first amendment questions would be raised if congress' power over copyrights were construed to include the power to grant monopolies over certain ideas”; Zacchini v Scripps-Howard Broadcasting Co 443 US 562 (1977); New York Times Co v Sullivan, 376 US 254 (1964); Garrison v Louisiana, 379 US 64 (1964); Sony Corp of America v Universal City Studios Inc 464 US 417 (1984). See also Time Inc v Bernard Geiss Assoc 293 F Supp 130 (SDNY 1968) where the public interest was held to justify the reproduction of frames from the Zapruder film of President Kennedy's assassination in a book, without authorisation.

35 The copyright laws themselves are also based on a constitutional provision which grants the Congress the right to instigate copyright and patent rules “to promote the progress of science and the useful arts”, so that it is an inescapable necessity to reconcile the two; the framers of the Constitution obviously saw them as compatible.

36 471 US 539 (1985). The majority held that there was no basis in the First Amendment for a rule giving the fair use doctrine a broader scope in cases involving a public figure's manuscript. See also L R Patterson and S W Lindberg, above n 26 at 124.

37 See, eg, Information Infrastructure Taskforce (ITT), The National Information Infrastructure: Agenda for Action, September 1993; IIT, Green Paper: Intellectual Property and the National Information Infrastructure, a preliminary draft of the report of the Working Group on Intellectual Property Rights, July 1994.

38 In the European Union similar issues have arisen: see, eg, the case of NV Televizier v The Netherlands, Council of Europe Doc No 5097 (n 2690/65, Dec 15, 1966).

39 Commonwealth of Australia Constitution, s 51 (xviii).

40 See Nationwide News Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 136; Theophanous v Herald and Weekly Times (1994) 124 ALR 1; Stephens v West Australian Newspapers Ltd (1994) 124 ALR 80; Cunliffe v The Commonwealth{1994) 68 ALJR 791.

41 See L R Patterson and SW Lindberg, above n 26.

42 See, eg, Polyukhovich v The Commonwealth (1991) 172 CLR 501.

43 471 US 539 (1985) at 621.

44 Although with the development of virtual reality this is no longer a real limitation, since the impression of three dimensions can be successfully recreated on a computer.

45 See CCG, above n 2.

46 See the various Reports on Computer Programs, above n 27.

47 Eg, the so-called moral right of attribution.

48 Although examples of the use of copyright to prevent circulation of facts or ideas have been known. An interesting example in the United States was Rosemont Ent Inc v Random House Inc 366 F 2d 303 (2d cir 1966): the reclusive millionaire Howard Hughes through his company Rosemont purposefully acquired the copyright in a series of articles about his life published in Look magazine. On the basis of those articles he was able to enjoin publication of an unauthorised biography. The injunction was overturned on appeal, although substantial portions of the biography were copied from the Look articles. For another analysis of the use of copyright to control content rather than form, in relation to obscene or subversive works, see R G Howell, “Copyright and Obscenity: Should Copyright Regulate Content?” (1994) 8 Can IPJ 139.

49 The question of digitisation itself and protection of digitised works, computer generated works and databases, as opposed to their digital transmission, is not covered here: for consideration of those matters, see the Reports mentioned above, n 27 concerning computer programs.

50 Section 31(v): to cause the work to be transmitted to subscribers to a diffusion service; the same words apply to films: Copyright Act 1968 (Cth), s 86.

51 Future technologies would not necessarily require the use of cable to transmit data on request, and the diffusion right covers only transmissions by wire; on the other hand the broadcast right as it stands seems only to cover wireless transmissions to the public and not to individual (interactive) users.

52 S Ricketson, The Berne Convention on the Protection of Literary and Artistic Works, 1886-1986 (1987).

53 Ibid.

54 This argument is supported in the United States, see above n 37, Preliminary Draft at 25. The concept of the copyright owner's public was aired in Rank Film Distributors Ltd v Dodds (1983) 2 IPR 113; and APRA v Canterbury Bankstown Leagues Club Ltd (1964) 5 FLR 415. See also APRA v Telstra Corporation Ltd (1993) 27 IPR 357; and APRA v Commonwealth Bank of Australia (1992) 25 IPR 157.

55 It is not yet possible to comment on the CLRC recommendations, although the Reference proposes investigation of a broad right of this kind: CLRC, above n 1. This accords approximately with the recommendation of the CCG. A right over “the transmission of copyright material in intangible form to the public by any means or combination of means which is capable of being made perceivable or used by a receiving device”, is proposed. The broadcasting right, although only as a sub-species of the transmission right, would retain a separate existence in the Act, mostly to recognise the distinct use in free-to-air broadcasts over TV and radio. “The public” would not be defined but transmissions (as defined) made for commercial purposes would be deemed to be to the public: CCG, above n 2. The right of communication to the public originally put forward as a solution in the preceding Issues Paper was thus narrowed in the final report, see CCG, Issues Paper, June 1994. Fraudulent reception of transmissions and the making, importing or selling of unauthorised decoding devices would be made criminal offences. See also “Copyright Implications of Pay Television” Bulletin 82, Australian Copyright Council, December 1993.

56 What arguments would reasonably support a different approach to the question of infringement in cases of remote access to a work, and in cases of direct access, is not clear. Note also B Kaplan, above n 12, at 103-104, who in a remarkably prescient passage asks why storage of works on computer in itself should be infringement rather than their use in some way. The same could be said to apply to transmission of works.

57 See above at 326 ff.

58 Note that this problem has arisen in the area of reverse engineering of computer programs,since there too, as noted above, it is impossible to gain access to the ideas behind a work without infringing the copyright in it. Note, however, the recommendations of the CLRC: Final Report on Computer Software Protection, see above n 27. Note also the extraction right proposal in the European Union: EC Amended Proposal for a Council Directive on the Legal Protection of Databases, see above n 27.

59 Furthermore, the first sale or exhaustion doctrine could not be applied to such a right: a work or subject-matter would never escape from the control of the copyright owner. It would also seem to render difficult the application, at least in practical terms, of certain statutory limitations to the rights of the copyright owner, eg the fair dealing exception.

60 Note the seminal United States decision on this issue in the context of telephone directories: Feist Publications Inc v Rural Telephone Service Co (1991) 20 IPR 129. In Australia standards generally appear to be lower.

61 See Copyright (WTO Amendments) Act 1994 (Cth).

62 There is, of course, copyright in unpublished works, but if a work is not first published within Australia, or the author is not an Australian citizen at first publication, such copyright is lost. The concept is thus crucial to the subsistence of copyright once the work is published. At present, s 29(1) of the Copyright Act defines publication for literary, dramatic, musical and artistic works as the supplying of reproductions of the work to the public, whether by sale or otherwise.

63 For one consideration of this issue, see E J Dommering and P B Hugenholtz (eds),Protecting Works of Fact, Copyright, Freedom of Expression and Information Law (1991).

64 Note that a freedom of political speech must include a right of access to political expression. See also T Campbell, in T Campbell and W Sadurski (eds), above n 5, who notes the importance of dialogue leading to compromise in a democratic society, and the fact that individual citizens may possess information which is of relevance to the political process.

65 There is a question as to the nature of a published edition of a work in a digital publication context. Would this include a version of a work produced for the purpose of computer transmission? The CLRC and CCG have rightly recommended that published edition rights should not extend to works stored on computer where there is no actual reproduction, ie, where there is only transmission by cable, for instance: CCG, above n 2; CLRC, Final Report on Computer Software Protection, above n 27. It is clear that the published edition right should not be allowed to extend to works not published in any other form than electronically.

66 It might be worth noting that it could be that the transmission for mere viewing, hearing or reading to a receiving device might in itself involve an infringement, as the unavoidable storage on RAM memory in the receiving computer would, even if transitory, be a reproduction. Note however CLRC, Final Report on Computer Software Protection, above n 27, concerning screen displays.

67 Of course, the reproduction right is also adequate to cope with the problem of in-home copying which is hard to detect and combat. The prevalence of such copying would be likely to have the effect of inflating the cost of, inter alia, sound recordings and cinefilms, since it would be built into the transmission cost. However, modern technological means make it possible to combat such recording, or otherwise a blank tape scheme can be extended to cover all kinds of carriers of either digitally or analoguely stored data. Hence the occurrence of some unauthorised copying should be no excuse for the imposition of a very broad transmission right, the revenue from which would be aimed at compensating the copyright owner for presumed illegal reproductions in the home and elsewhere, but which would be a right which in itself did nothing to stop infringement.

68 Note the IIT, Green Paper, above n 37 at 9: “We believe that with no more than minor clarification and amendment, the Copyright Act, like the Patent Act, will provide the necessary protection of rights - and limitations on those rights - to promote the progress of science and the useful arts”. No introduction of a major new right seems to be proposed at this stage.

69 See, eg, H Heker, “The Publisher in the Electronic Age: Caught in the Area of Conflict of Copyright and Competition Law” [1995] 2 EIPR 75. Also see S Corones, “Reconciling Intellectual Property Rights and Competition Law: the Magill TV guide case” (1992) 20 Australian Bus LR 265.

70 The CCG does refer to the synchronisation of copyright and communications law as a desirable goal. Even if this is desirable, where it affects broader underlying principles, it may be a secondary ambition: CCG, above n 2 at 1.3.

71 CCG, above n 2 at 1.3.6.

72 It is important in this reform context that Australia should comply with its treaty

obligations and retain a level of parallel development with its major trading partners. Does the Berne Convention require the introduction of a right of transmission to the public? The Revision at Rome in 1928 incorporated broadcasting within the list of copyright rights which were to be protected by member states. However, the Berne Convention only requires the enactment of a specific cable redistribution right for broadcast programs. The result is that the obligations of member states concerning cable originated programs (be they those of the operator or another) fall under the public performance right, at least where dramatic, musical and dramatico-musical works are concerned. Public performance is defined in the Convention as (i) “the public performance of their works, including such public performance by any means or process”. In Ricketson's words, such performance is thus either “by some human agent or by some mechanical means which enables that representation to be transmitted to an audience” (emphasis added): S Ricketson, above n 52 at 425. The implication seems to be of a performance, whether live or mechanical, to an audience gathered in a public, not a private, place. Therefore this heading does not seem to cover cable-casting to private premises via the “Superhighway”. A further right contained in section 11 of the Berne Convention is that of (ii) “any communication to the public of the performance of their [the authors'] works”. It seems that this section could cover the transmission of works via cable if the use of cable entails a communication “to the public”. It must be noted that this part of the section only relates to the communication of performances of a work, not of the work itself. What is more, it does not relate to literary works (because obviously those are not works meant to be performed in the way dramatic works are). It is, however, arguable (although no further amplification is provided within the Convention text or the records of the Convention), that the terms of s ll(ii) refer to a performance before the author's public, that is “those who are willing to pay for the benefit of hearing or seeing the work performed. This therefore will exclude only performances in the immediate family circle.”: See S Ricketson, above n 52 at 432-433. The latter sentence can only apply to performance “in public” and not really to communication “to the public”, since in the latter case the public must be taken not as an assembly of people in one place but the collection of all those willing to pay to see or hear the performance of a work. Hence the question of performance in the family circle is not relevant in the context of s 1, which relates to diffusion to subscribers via a landline of a live or recorded performance. In essence then, although the Convention clearly requires the protection of the right of diffusion via cable, this right relates not to the works themselves but to - for our purpose recorded performances of such works, ie, to Part IV subject-matter and not Part III works. In other words, the Berne Convention does not require the granting of a right of transmission via cable in primary or Part III works. As far as literary works are concerned,“authors of literary works shall enjoy the exclusive right to authorise both (i) the public recitation of their works, and (ii) any communication to the public of the recitation of their works”. Recitation is here seen as the direct performance of a literary work, such as a poem or book reading. Again, this right does not relate to the direct transmission of the literary work itself, as would be possible over cable. For literary works then, the extension of the cable transmission right to the work per se is not required by the Berne Convention. The conclusion is thus the same for all Part III works: the Berne Convention provisions relating to the “communication to the public” right do not require member states to grant copyright owners a cable transmission right. However, for Part IV subject-matter it is required, if it is accepted that sending by cable to a number of individuals, either simultaneously or not, is a public performance. This analysis would conform with my suggested option that the transmission right not be extended to Part III works as such.

73 Note the model adopted by the Copyright, Designs and Patents Act 1988 (UK).

74 Cf IIT, Green Paper, above n 37. The Working Group on Intellectual Property Rights recommended that there should be a distinction between transmission of a reproduction of a work and the transmission of the a performance or display of a work; this is relevant to what I said concerning the Berne Convention, see above n 72.

75 On the nature of authorship, see inter alia M Woodmansee and P Jaszi (eds), The Construction of Authorship, Textual Appropriation in Law and Literature (1994); M Rose, Authors and Owners, The Invention of Copyright (1993) and A Saunders, Authorship and Copyright (1992). For a novel look at the distinct concepts of authorship in copyright and in industrial property rights, see M Franzosi and G de Sanctis, “Moral Rights and New Technology: Are Copyright and Patents Converging?” [1995] 2 EIPR 63.

76 L R Patterson and S W Lindberg, above n 26 at 124: “Another explanation [of why free speech rights questions have received little attention from courts until relatively recently] may be that as long as copyright required publication, the free speech danger it posed was minimal ... But with the application of copyright to unpublished materials of modern communication technology, the danger to the free speech right of public access becomes more apparent”.

77 For a clear and considered treatment of these issues, see P Drahos, “Intellectual Property Law and Basic Science: Extinguishing Prometheus?” in C Arup (ed), Science Law and Society (1992)10 Law in Context Special Issue 56 and also P Drahos,"Information Feudalism in the Information Society” (1995) 11 The Information Society (forthcoming).

78 S Ricketson, “The Future of Australian Intellectual Property Law Reform and Administration” (1990) 1 AIPJ 3.

79 For an example of this process at work in the area of industrial property, see C Arup,Innovation Policy and the Law (1993).