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JULIAN THOMAS[*]
In this article the author examines the recommendations made by the Australian Government's Copyright Convergence Group in its paper titled: "Highways to Change: Copyright in the New Communications Environment." He considers that the group has taken a narrow view of what constitutes the 'new communications environment' and as a consequence its programme for reforming the copyright laws of Australia does not meet the challenge of technological change.
When Duncan Kerr decided to bring copyright law out of the age of Marconi and into the age of convergence, he picked a small group of experts who could get the job done fast.
It was a big ask. Right from the start Mr Kerr was talking about a fundamental reform, rather than ‘tinkering around the edges’.[1]
This paper is concerned with some aspects of the August 1994 report Highways to Change: Copyright in the New Communications Environment by the Australian Government’s Copyright Convergence Group.[2] The report begins by referring to ‘growing concerns about the capacity of the existing copyright legislation to cope with the new technological realities’.[3] The report is important as a response to those concerns, and the Government has recently announced that it will accept the CCG’s recommendations.[4] My argument, however, is that in the context of current policy and technological change, the Group has taken an unnecessarily narrow view of what constitutes ‘the new communications environment’. As a consequence its programme for reforming Australia’s copyright laws neither meets the challenge of technological change, nor grasps the opportunities change offers.
The Group’s report was commissioned and prepared in the context of rapid developments in Australian communications technology and policy. The Commonwealth’s Broadcasting Services Act 1992, Radiocommunications Act 1992, and Telecommunications Act 1992 all attempted to regulate old services and enable new ones in ways which were as much as possible independent of their technological means of delivery, and to that extent more durable in an era of change. Highways responds to the Commonwealth’s recognition that similar concerns apply to the content of the new media. Material cannot be well protected if that protection is defined in terms of a form of delivery — such as a ‘literary work’ or ‘cinematograph film’ — which happens to have a status in copyright law. Such a nexus will only ensure that every new delivery technology will create uncertainty and force incremental change in an area where wholesale reform is needed. The Copyright Act 1968 (Cth) (hereafter ‘the Act’) was designed to regulate intellectual property in stable cultural forms for a small, highly protected society. Music-on-hold had never been thought of.[5] Twenty six years later that society and its telephones have been transformed, and cultural policy now emphasises the benefits of change: diversity, accessibility, greater openness to the world, and a more dynamic adoption of new technologies. The renovation of our system of intellectual property is a necessary element in this broader programme.
Copyright reform is now a priority for government. Apart from Highways, the Commonwealth published a discussion paper on Proposed Moral Rights Legislation for Copyright Creators in June 1994, journalists’ copyright remains an issue following the May 1994 report by the Copyright Law Review Committee (CLRC), and a review of copyright collecting agencies is underway. The CLRC published a draft report on computer software protection in June 1993, which has been the subject of sustained critical attention.[6] The Commonwealth’s cultural policy statement Creative Nation launches a series of substantial reviews. The CLRC has two new tasks: simplifying the Copyright Act and conducting a more far-reaching examination of copyright protection in the ‘new communications environment’.[7] Creative Nation also promises to consider the application of copyright for the visual arts and signals new legislative and administrative support for copyright administration. Further, Creative Nation refers to two important international developments, announcing a ‘range of copyright reforms’ to ensure Australian compliance with the Agreement on Trade Related Aspects of Intellectual Property (TRIPs), and the Commonwealth’s in principle support for the World Intellectual Property Organisation’s proposed broad-based distribution right.[8]
The vigour of the current review process reflects the Commonwealth’s high expectations for what it calls the ‘new communications environment’. These are clearly expressed in the August 1994 interim report of the Broadband Services Expert Group (BSEG), Networking Australia’s Future. BSEG’s guiding principles stress the potential for encouraging inclusive and accessible media. Interactivity is seen as a crucial attribute, producing new forms of creative, active citizenship through empowering programming. The BSEG envisages an industry structure characterised by international competitiveness, partnerships between carriers and service providers, and a ‘leading edge’ role for government.
Networking Australia’s Future sets out broad objectives. It may come to be seen as an act of symbolic rather than practical policy, given the ease with which it glides over substantive structural and regulatory problems.[9] But it does signify that the current ‘moment’ in cultural policy making has raised hopes very high: there is an evident belief in the documents and the debates around them that the technological capacity exists to enable substantial growth in the information industries and their contribution to the national economy, while providing much improved services for Australian audiences.
However, all these developments inevitably give rise to a further problem: can a future new version of copyright deliver consistency and coherence, or will all the powerful but various imperatives for change — the technologies, the policy agendas, the sectoral interests, the international treaties, and the local cultural, political and economic debates — extend the application of copyright into domains beyond its ability to deliver effective and practical protections for cultural producers?
There are now a number of different players in the copyright reform business: among them the CLRC, the CCG, the Attorney-General’s Department and the Department of Communications and the Arts, while the work of other policy groups such as BSEG has implications for intellectual property. At the international level WIPO has been joined by the World Trade Organisation and TRIPs. Coordinating strategies may be developed, and the CLRC will conduct a general review, but it may be that copyright cannot do everything asked of it from every quarter. Yet in the present debate questions of policy coherence tend to be avoided rather than tackled. Each expert group and each new report expound a distinctive rationale for change.
One example of the problems created by such a complex policy process relates to the relationship between schemes for the extension of copyright to new forms of cultural production and those advocating the augmentation of copyright with further rights. Ideas for ‘spreading’ or ‘deepening’ intellectual property protection are often developed in apparent isolation. Where, for instance, would an author’s moral right of integrity stand in BSEG’s promised age of interactivity? BSEG’s report does not deal with this or other intellectual property issues. The CLRC’s draft computer software report acknowledged that moral rights were under consideration, but, without presenting any argument other than a reference to the Committee’s 1988 moral rights report, recommended against moral rights for software authors. At the same time the Committee insisted that software authors should not have lesser rights than others.[10]
The Commonwealth’s June 1994 Discussion Paper on moral rights sees digital technology as a powerful new rationale for providing moral rights. Musical sampling, image manipulation, and the non-attribution and manipulation of multimedia materials are cited as examples of the capacity of computers to diminish authorship.[11] But the paper could equally have seen this area as a posing a serious problem for traditional ideas of moral rights. How meaningful will an integrity right be in an environment where, more than ever before, users have the tools to adapt, modify and manipulate?
The fate of copyright will become clearer in the next two to three years, as the current phase of reform begins to take statutory shape. Even so, the wider issues inevitably underlie any discussion of the Convergence Group’s work. Creative Nation announces the Government’s intention to make Australia ‘a pioneer in the development of copyright legislation in the new communications environment’.[12] It observes that the CCG’s findings ‘will put Australia at the forefront of intellectual property reform’.[13] Such statements are probably best read as policy hype — the CCG notes the guidance of the Copyright Designs and Patents Act 1988 (UK), and refers to the United States Green Paper on Intellectual Property and the National Information Infrastructure and a recently released New Zealand bill.[14] But they may also be evidence of real governmental aspirations and the conviction that there should be a clear direction in copyright reform. In this light, the significance of Highways may extend beyond its immediate findings and recommendations.
The CCG’s terms of reference were framed broadly. The Group was asked to consider the adequacy and appropriateness of current copyright protection ‘for broadcasts and other electronic transmissions and the underlying copyright materials used in those transmissions’.[15] The CCG was to have regard to ‘the fundamental changes which are occurring in the manner in which copyright materials are being used’; ‘the need to facilitate such uses while providing appropriate protection for copyright and creating a positive environment for industry’; and ‘international obligations and ongoing consideration in international fora’.[16]
Beyond this general question, five particular matters were put before the CCG. These can be summarised as follows:
• the scope of the diffusion rights set out in ss 31, 86 and 26 of the Act, and whether the rights of authors and cinematograph film makers to control electronic transmissions should be varied or extended
• the issue of whether the exclusive right which authors of works and owners of cinematograph films currently hold over cable and other electronic transmissions should also be enjoyed by the owners of copyright in sound recordings, and television and sound broadcasts
• whether electronic transmissions not currently protected under the Act should be, and, if so, how
• the operation of the right of retransmission of authorised broadcasts to cable subscribers provided in s 199
• the need to regulate the unauthorised use of secured or encoded transmissions.[17]
What we have is a report which must formulate policy at two different levels: at the level of general issues — for example the status of ‘other electronic transmissions’ — and at the level of particular problems and inconsistencies in the current Act, such as the apparent differences in the cable transmission rights held by owners of recordings and broadcasts compared with those enjoyed by the authors of ‘works’. It is not then surprising that Highways focuses on the latter problems, identifying matters which it considers require urgent amendment and referring others for subsequent review.
Highways is centrally concerned with broadcasting and transmission rights. It identifies a series of limitations and inconsistencies in the distribution of these rights under the current Act.
In respect of the right to broadcast, the most serious problem is the definition in s 10 of broadcasting as ‘wireless telegraphy’. Although this definition follows the terminology of the Berne Convention, the CCG points out that it has no basis in current broadcasting practice: the means of delivery a service provider happens to employ should not determine the scope of his or her rights over the material.[18]
A further definitional problem concerns the requirement that a broadcast transmission must be ‘to the public’.[19] A number of cases have dealt with this issue,[20] and the CCG observed that the latest of these, APRA v Telstra,[21] raises particular problems over whether a narrow interpretation of the meaning of ‘to the public’ may exclude narrowcast services. As the CCG emphasises, new media forms such as on-demand services make the public/private distinction even more intractable. It is doubtful whether this term is at all relevant to a range of new services which may be widely but not generally accessible. Even so, on the grounds of international consistency the CCG does not seek the removal of this outdated stipulation. Nor does it suggest a statutory definition. Instead it proposes that a new provision in the Act deem transmissions of copyright material to be public transmissions if they are made for a commercial purpose. Such an approach is fraught with difficulties in the ‘new communications environment’; some of the problems are discussed below.
APRA v Telstra also creates difficulties for the ‘diffusion service’ right defined in s 26 of the Act. In the Federal Court Gummow J held that the provision of music-on-hold on telephone networks owned by Telstra did not breach the music copyright owners’ exclusive right to transmit the work through a diffusion service.[22] The CCG’s policy view is that music-on-hold would clearly constitute a commercial use of copyright material and should require the permission of the owner.[23]
In the light of the complexity of the diffusion right, the CCG proposes replacing it with a broad transmission right. A new right could be defined and applied more consistently: the anomalous restrictions for the authors of artistic works[24] should be removed, and the lack of diffusion rights for sound recordings, broadcasts and published editions addressed.
This last point, especially in relation to broadcasts, is most important for the report. Cable providers were previously allowed to retransmit broadcasts on the basis that they were generally providing access in poor reception areas. The practical significance of giving broadcasters a transmission right will be to curtail the ability of service providers to transmit audio or broadcast material without the permission of the copyright owners. This has a number of consequences in the ‘new communications environment’, and especially for the providers of the new or imminent subscription services. If the CCG’s recommendations are accepted, cable television operators will not be able to ‘bundle’ free-to-air broadcast material, nor ‘cherry pick’ that material for incorporation into their own programmes, without the permission of the broadcast copyright owners.[25]
This proposal is the core of the CCG report. Its effect is to bring copyright law into line with the media and telecommunications regimes enacted in the early 1990s. It protects the position of the powerful existing players, especially the free-to-air broadcasters, by giving them control over retransmission. At the same time the CCG recognises that a technology-neutral approach requires that cable service providers be also regarded as broadcasters. This places them in a clearer position than the complex diffusion right may have allowed, and also grants them some protections and privileges denied others, such as the rights in s 91 of the Act[26] and ephemeral copying rights.[27]
Most of the Group’s remaining recommendations can best be understood as further tailoring copyright to the shape of the new broadcasting regime. The CCG proposes to retain the broadcast right as part of the new transmission right, and to link definitions of broadcasters and broadcasting for copyright purposes to those in the technology-neutral Broadcasting Services Act 1992 (Cth).[28] The copyright status of satellite transmissions[29] and transmissions both to and from Australia[30] will be secured through statutory amendment. It is recommended that new offences be created to discourage unauthorised reception of transmissions and dealing in unauthorised decoding devices, and a new civil right of action allowed against persons who deal in such goods.[31] The Group recommends the repeal of the current provision in the Act (s 26 (3)) which permits the transmission of copyright material where ‘the service is incidental to the business of keeping or letting premises at which persons reside or sleep’. As the report points out, s 26 (3) sanctions entertainment services provided for commercial benefit in hotels, apartments, private hospitals and holiday resorts.[32] This analysis explains the stipulation made in the Act that such services be provided as amenities for ‘residents or inmates’.
The outlook of Highways appears to be almost wholly framed by the immediate intellectual property exigencies of the 1992 broadcasting regime. It responds more to the need for policy convergence than actual technological possibilities. The larger issues of technology and changing forms of communication raised in the Group’s terms of reference and in the introduction to Highways are not developed in the course of argument. As the Group explains, its review was conducted with some urgency, and clearly immediate regulatory problems took priority over matters which could be referred to later and more leisurely review.[33]
The risk is that the limited approach adopted by the CCG will influence the longer term review process. The CCG did not examine the nature of the ‘new communications environment’, but its concerns were developments in broadcasting and the delivery of new subscription and on-demand services via cable and satellite. These matters should not be taken to define the ‘new communications environment’ by default. A closer reading of the report suggests that the narrowness of its approach was only partly the result of the need to address the most pressing policy issues.
The notion of ‘convergence’ itself needs to be carefully considered. Following OECD thinking, Highways sees convergence as a process of change occurring at three levels: networks, services and corporate organisation. In terms of networks, convergence refers above all to the digitisation of content, and the concomitant interchangeability of delivery technologies. ‘Digital technology provides a common universal language for all services.’[34] Hence the report’s emphasis on technology neutral regulation. At the service level, convergence makes possible new media which cannot be accounted for in the old categories of broadcasting, telecommunications, computing and publishing.[35] Convergence at corporate organisation level involves mergers and partnerships between carriers and content providers, and across formerly distinct fields of cultural production such as the film, communications and software.[36]
So convergence describes the results of a number of closely related processes, driven by digital technology. But it does not follow from the CCG’s account that convergence is a historical force in its own right, or that it is an inevitable or the only significant result of digital technology.
Without detracting from the significance of the changes registered by the CCG as ‘convergence’, it would be equally possible to point to ‘divergence’ as a powerful general consequence of digital technology. At the network level, ‘divergence’ could be manifested in the growth and enormous quantity and diversity of material held in ever more decentralised digital form. At the service level, it is present in the extraordinary profusion of communications software and services, from global searching tools to ‘meeting-makers’. And at the organisation level, it is evident in corporate terms in the huge number of so-called ‘soho’ (small office/home office) enterprises made possible by computers and computerised communications, at a time when small businesses comprise the largest and fastest-growing sectors of developed economies. In non-corporate organisational terms divergence is evident in the proliferation of on-line communities, and the transformation of a military and academic research network into a cluster of networks servicing a vast range of professional, personal and commercial interests.
A more comprehensive view of copyright reform in the ‘new communications environment’ would need to attend to both convergence and divergence. As a starting point, divergence appears to present at least as many problems for copyright as convergence does, but they are problems of a different nature. While convergence issues can be dealt with by reconciling copyright law with media and telecommunications regulation, divergence requires a greater attention to what people do with their computers and the information in them. Divergence, furthermore, has as much to do with communication as convergence. It points to the development of a devolved but substantial computing infrastructure entirely devoted to the transmission of material: the Internet and the networks which comprise it, all strangely ignored in a report called Highways to Change.
The Internet already delivers much of what has been promised for the ‘information superhighway’.[37] It provides, among other things, a global network of archives and databases storing text, speech, video, music, and images of all kinds; rapid, sophisticated and extremely economical mail services for millions of users; commercial services; and a substantial number of globally and locally accessible news, professional, scientific and interest forums.[38]
Issues of copyright on the Internet have long been recognised as problematic. Hiltz and Turoff’s early (1978) study of networking noted that:
In terms of computerized conferencing, the direction and extent of future application will depend critically on the resolution of the information rights issues. Authors, poets, free-lance journalists, and other writers will not contribute material to these systems unless there is some concept of ownership or copyright that allows them to obtain revenues for the use of their material on these systems. One major problem that has not occurred to the formulators of copyright legislation is the segmented and overlapping nature of material in these systems….[39]
Despite this warning, and notwithstanding the non-resolution after sixteen years of many of the information rights issues, authors continue to publish and distribute through the Internet. Having waited so long, would they be reassured by the broad based transmission right proposed by the CCG?
The issue here is the extent to which the CCG’s proposed new transmission rights enable copyright owners to control the transmission of their work over computer networks. Unfortunately, the position of computer networked communications under the CCG’s proposed scheme is unclear.
It is apparently the case that networking cannot be included in the Group’s definition of ‘broadcasting’, despite the expansion of that term to cover wired services. ‘Dial-up services’ providing ‘material available on demand on a point-to-point basis’ are excluded, and computer networking is specifically mentioned as a non-broadcasting transmission.[40] Yet while the Group clearly does not wish to include networking, some forms of networking could avoid some or even all of the criteria of exclusion, however unclearly they are framed: ‘a transmission shall not be a broadcast if it is part of a service which provides no more than data or text’.[41]
An example of an Internet service which could well meet the CCG’s requirements of a ‘broadcaster’ is the radio station Radio Technology for Mankind (RTFM). RTFM plans to transmit 24-hour audio with supplementary text and pictures over the Internet live from such locations as the United States National Press Club, Congress and the Kennedy Centre for the Performing Arts in New York.[42] While few Internet users currently have access to the very high bandwidth connections required for live audio, some do, and there can be little doubt that more will in the near future. As that happens, there will be also more ‘cyber-broadcasters’.
The CCG envisages that ‘computer networking of material’ will be included in the wider public transmission right.[43] The scope and character of the proposed broad based right can be set out as follows:
• the right is technology neutral, applying to both wired and wireless communication;[44]
• the right provides ‘the ability to transmit visual images, sounds or other information in intangible form by any means or any combination of means whatsoever’;[45]
• the right is not a public performance right;[46]
• the right involves transmission ‘to the public’.[47]
Networking of copyright material readily falls within the scope of first three of these points. But the final requirement in this list is problematic for networked communication, as it is for other new media. The Group comments on the need to exclude certain transmissions, such as interactive communications and communications which are of an ‘essentially private kind’. Examples of transmissions which do not meet the requirement of being ‘to the public’ are ordinary telephone conversations, telebanking and videoconferencing.[48]
Highways acknowledges the difficulty of defining a public transmission. Notions of ‘the public’ are hard pressed to encompass the point-to-point connection which may be made between a person transmitting copyright material and a user in, for example, an on-demand service.[49] As I have already noted, the solution of the CCG is to avoid defining ‘public’, while proposing the rule that transmission ‘for a commercial purpose’ be deemed to be a public transmission.[50]
It follows that e-mail transmissions will rarely be regarded as ‘public’ in this context. But what about postings to newsgroups, such as those carried on the part of the Internet known as Usenet?[51] Usenet newsgroups are read by millions of Internet users, and are often accessible to the large body of users with marginal net access, such as Internet users without the capacity to ‘post’ or contribute items, or the customers of online services which offer a narrow range of net services. Copyright materials which may appear in newsgroup postings include news items, extracts from on-line magazines, stories, sounds and images.
If such a posting were ‘made for a commercial purpose’ then it would be regarded as a transmission to the public. The effect of this CCG proposal will be felt more directly by the providers of commercial online services, such as CompuServe or Apple Computer’s e-World. An unlicensed transmission by a commercial service provider would constitute an infringement of copyright. This would be the case under the CCG proposals if it originated from Australia or was ‘intended for reception in Australia’. Under the existing Act, in contrast, there would be no infringement — provided the work was not copied — if, for instance, the work involved was a sound recording, a published edition, a broadcast or an artistic work (provided the latter was not included in ‘a television programme’).[52]
However, much computer networking, and certainly most Usenet traffic, is not conducted ‘for a commercial purpose’. Under the existing law, network users would have to be regarded as ‘subscribers’ to come under the ‘diffusion right’ category.[53] Under the CCG’s proposed scheme, the question of a newsgroup posting’s copyright status must be decided by the more general and more difficult test of whether it is transmitted ‘to the public’. Such a posting would be unlikely to be covered by the interactive services exclusion, which appears to depend on a more exacting definition of ‘private telecommunications’.[54]
In the light of the existing Australian case law on the meaning of ‘public’ for the purposes of copyright, its status cannot be clear. ‘Public’ has been considered in the context of ‘public performance’ as well as ‘broadcast to the public’, and the second use may have a more restricted meaning.[55] The discussion of Gummow J in APRA v Telstra is instructive. Following his suggestions, if there are a number of readers of a news group, (as will often but not always be the case) a posting is likely to be considered a transmission to the public.[56] The fact that only a limited segment of the public might have access to the transmission need not matter,[57] nor the fact that they may be accessing the newsgroup for work purposes,[58] nor the fact that they may receive the transmission individually and in private.[59]
If the scope of the CCG’s broad based transmission right does extend to the Internet, some serious consequences follow. At the level of policy, the commercial element of the public transmission which appears in the reasoning of many of the decisions Gummow discusses signals a problem for applying the new transmission right to networking. On the Internet there will be apparent infringements where there is no evidence of economic exploitation of transmitted copyright materials, nor any calculable loss to the copyright holder. The Internet (and Usenet in particular) is not a mass medium. Its marketing potential is undeveloped in comparison with commercial online services.
This is not to deny the need for any form of intellectual property protection on the Internet. The problem is that the CCG’s report may have the effect of extending copyright to some networking activities without any detailed consideration of how computer networking is developing or how appropriate copyright is to the diverse forms of computer transmission found on the net. How is copyright to be enforced on the net, both for cultural producers and consumers? If the proposed transmission rights prove inappropriate or impossible to enforce, the consequence will be haphazard compliance and uncertain law, benefiting neither cultural producers nor consumers. The price of ‘getting the job done fast’ may be doing it all over again in the near future. Despite the attractions of the ‘policy convergence’ solution, copyright law does not necessarily offer the best way to regulate the traffic of intellectual and cultural work on the net. In other areas, such as circuit layouts, sui generis regimes provide an arguably better system.[60]
Policy makers can tailor copyright to broadcasting because they know, more or less, what the immediate future of broadcasting will be. The industry is directly subject to government regulation. This is not the case with the Internet. Yet it is the Internet which offers the flexibility, accessibility, and range of services which governments wish to see provided by the information superhighway. If Australia is really to take a pioneering role in developing intellectual property protection in the new communications environment, a comprehensive review will be necessary. The CLRC inquiry announced in Creative Nation may undertake that task.
[*] National Centre for Australian Studies, Monash University.
[1] Chris Merritt, ‘The team that came up with the answers — FAST’, Financial Review (Sydney) 24 June 1994.
[2] Copyright Convergence Group, Highways to Change: Copyright in the New Communications Environment, August 1994. In this paper I refer to the Copyright Convergence Group as CCG, or simply ‘the Group’; its report is Highways.
[3] Ibid 1.
[4] Creative Nation: Commonwealth Cultural Policy, October 1994, 64. Hereafter Creative Nation.
[5] See APRA Ltd v Telstra Corp Ltd [1993] FCA 542; (1993) AIPC 91-036 (‘APRA v Telstra’). Music-on-hold is the provision of music to telephone users placed on ‘hold’.
[6] See especially the contributions in (1993) 4 Journal of Law and Information Science 201-303.
[7] Creative Nation, above n 4, 65.
[8] Ibid 64.
[9] Helen Mills has pointed to inconsistencies in the BSEG’s thinking, especially over questions of local content and the scope of regulatory control. She has noted the Group’s failure to address important issues concerning industry structure and ownership, and intellectual property. See Helen Mills, ‘The BSEG: Networking Australia’s Future’ (August 1994) Communications Update 10-11.
[10] Copyright Law Review Council, Draft Report on Computer Software Protection, June 1993, 139-140, and Copyright Law Review Council, Report on Moral Rights, 1988.
[11] Commonwealth of Australia, Discussion Paper: Proposed Moral Rights Legislation for Copyright Creators, June 1994, 31-2. Musical sampling is the copying, reproduction and manipulation of short extracts from musical works within a musical work, usually by digital means. Images may be similarly digitised and altered with standard software. The term multimedia refers to the combination of text, sound, still and moving images in a software application or document.
[12] Creative Nation, 64.
[13] Ibid 66.
[14] Highways 29-31, cf. 24.
[15] Highways 2-3.
[16] Ibid.
[17] Ibid 3.
[18] Ibid 16.
[19] Ibid 17-19.
[20] See especially Rank Film Production Ltd v Colin S Dodds (1983) 2 NSWLR 553 and APRA v Commonwealth Bank of Australia (1993) AIPC 90-948.
[21] APRA v Telstra [1993] FCA 542; (1993) AIPC 91-036. The case was the source of some consternation: see Chris Merritt, ‘When the Music Stops…’, Financial Review (Sydney) 24 June 1994.
[22] Ibid 39,754-39,757. The music at issue was the Beatles’ Let it Be.
[23] Highways, 19.
[24] In s 31 (b) (iv).
[25] Highways, 23. ‘Bundling’ in this context refers to the provision of one service, in this case the free to air channel, with another, paid-for service; ‘cherry picking’ involves the selection of particularly attractive or lucrative content from the free to air service and the reproduction of it on the paid-for service.
[26] Ibid 33-4.
[27] Ibid 55-6.
[28] Ibid 27-8.
[29] Ibid 46.
[30] Ibid 43-4.
[31] Ibid 53-4.
[32] Ibid 55.
[33] See ‘Agenda for Further Review’, ibid 59-68.
[34] Ibid 4.
[35] Ibid.
[36] Ibid.
[37] Hence a net witticism reported in the November 1994 edition of the magazine Wired: Q: What is the Information Superhighway? Answers: It’s just like the Internet, except it’s a lot more expensive / there’s a commercial break every ten minutes, etc.
[38] Numerous books have been written about the Internet, but few are really informative. Peter Otte, The Information Superhighway: Beyond the Internet (1994) is indicative of the general standard.
[39] Starr Roxanne Hiltz and Murray Turoff, The Network Nation: Human Communication via Computer (rev ed, 1993) 414.
[40] Highways, 28. For a discussion of these issues in the Canadian regulatory context, which still however understates the significance of networking, see Hank Intven, ‘Traffic Rules on Canada’s Information Highways: the Regulatory Framework for New Cable and Telephone Services’ (1994) 4 Media and Communications Law Review 131, 137-143.
[41] Ibid.
[42] Lisa Armstrong, ‘Cyber radio to broadcast non-stop on the Internet’, Australian (Sydney) 11 October 1994 .
[43] Highways 28.
[44] Ibid 25.
[45] Ibid.
[46] Ibid 25-6.
[47] Ibid.
[48] Ibid 26.
[49] Ibid 29.
[50] Ibid.
[51] Usenet is a network of ‘news’ or discussion groups transmitted over the Internet. The number of newsgroups currently exceeds 5,000.
[52] See p. 6 above: these categories of work currently lack or, in the case of artistic works, enjoy a very limited diffusion right.
[53] See s26 of the Act.
[54] Highways 29-30.
[55] APRA v Telstra [1993] FCA 542; (1993) AIPC 91-036; Gummow J. at 39,761. For numerous examples of what performance in public may mean, see E. P. Skone James et al, Copinger and Skone James on Copyright (1991) 208-211.
[56] APRA v Telstra [1993] FCA 542; (1993) AIPC 91-036; Gummow J. at 39,761.
[57] Ibid.
[58] Ibid 39,760; APRA v Commonwealth Bank of Australia (1993) AIPC 90-948.
[59] Rank Film Production v Colin S Dodds (1983) 2 NSWLR 553, 560.
[60] For instance, the provisions under the Circuit Layouts Act 1989 (Cth) regulating reverse engineering and parallel importation (ss 24 and 23) provide more flexibility than Australian copyright law and, in general, meet the industry’s needs more effectively.
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