JILT 1997 (3) - Macmillan & Blakeney
The Copyright Liability of Communications Carriers
ContentsAbstractIn the light of digitisation and the development of rapid communication networks such as the Internet, this paper considers the potential for communications carriers to become liable for breach of copyright. The paper assesses the effect of the relevant provisions of the Berne Convention and the recent WIPO Copyright Treaty. Australian proposals for the implementation of the WIPO Copyright Treaty are examined in the context of the lessons that might be learned from the recent Australian High Court case of Telstra v APRA.
This is a Refereed Article published on 31 October 1997. Citation: Macmillan F. et al, 'The Copyright Liability of Communications Carriers', 1997 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/commsreg/97_3macm/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_3/macmillan/> 1. IntroductionIn August this year the High Court of Australia handed down a perplexing decision in the case of Telstra Corporation Ltd v Australasian Performing Right Association Ltd ( Telstra v APRA ). The result of the case was to impose primary liability as a copyright infringer upon Telstra, Australia's main telecommunications carrier, in respect of music played to users of the telephone system while they were on hold. This liability was imposed notwithstanding Telstra's inability, in at least some of the factual situations involved, to monitor or control the content of the material dispersed on its communications network. It is perhaps a little surprising that the first case of this nature to be brought against a communications carrier in Australia relates to the somewhat technologically unexciting topic of the provision of music on hold. In the digital environment the cyberspatial possibilities for copyright infringement by communication carriers, vast and vexed as they are, seemed more likely to yield litigation. Of course, by focussing upon the methods of transmission of the copyright works in question the case does raise the issue, albeit indirectly, of liability for transmission of information on the Internet. Previous attention for copyright liability in this respect had tended to focus upon Internet service providers (ISPs). In Australia there has not yet been any litigation on the liability of ISPs for copyright infringement, however litigation in other jurisdictions tends to suggest that these waters are somewhat muddy.[1] Bearing in mind the proliferation of ISPs and the fact that they vary in size from the large and well resourced to the relatively insubstantial, Telstra v APRA raises the spectre of copyright plaintiffs preferring to lock horns in the courtroom with the more easily identifiable and generally much better resourced communications carriers. This paper argues that there are significant implications for the underlying goals of copyright law in imposing copyright liability on communications carriers and ISPs and, further, that these implications differ depending upon whether one is concerned with communications carriers or ISPs. Accordingly, any analysis must distinguish between the positions of these two quite different groups of communications facilitators. While these issues will continue to be raised for the delectation of national courts and legislators, the matter is one of international legal concern. Within the last year there have been two new World Intellectual Property Organization Treaties [2] which impact in this area. In particular, the WIPO Copyright Treaty, which operates as special agreement under the Berne Convention for the Protection of Literary and Artistic Works of 1886, seeks to deal with general questions of copyright infringement and liability in the digital era. As is the nature of international diplomatic compromise, the Treaty expresses the obligations of contracting states in broad terms which leave room for national idiosyncracies. The Australian proposals for implementation of the Treaty obligations are contained in a Commonwealth Government Discussion Paper, Copyright Reform and the Digital Agenda ( 1997 ). When these proposals, or an amended version of them, come into legislative effect they will remove the particular legislative provisions which caused the trouble in Telstra v APRA . Nevertheless, as this paper seeks to show, important policy issues raised by that case have not been completely dealt with by the new proposals. The paper proceeds to examine the copyright liability of communications carriers by examining first, in Part 2, the international obligations imposed on the contracting parties to the Berne Convention and the two new WIPO Treaties. Part 3 of the paper focusses in some detail on the position of communications carriers under Australian law. Attention will be given to the light which Telstra v APRA sheds on problems which seem likely to continue to plague copyright law, even after the implementation of reforms in the wake of the new treaties. The potential copyright liability of ISPs, and the legal and policy reasons for distinguishing between communications carriers and ISPs are considered in Part 4. Part 4 considers the issues of the imposition of liability on these two classes of communications facilitators in the light of the goals of copyright law. The conclusions of the paper are contained in Part 5 2. Obligations Under International Conventions2.1 The Exclusive Rights under the Berne ConventionPrior to the 1996 WIPO Copyright Treaty, the main international treaty provision likely to affect the liability of communications facilitators was Article 11 bis (1) of the Berne Convention.[3] In broad terms this provision requires member states to give an exclusive right to the copyright owner of literary and artistic works to do or authorise four different classes of acts: wireless broadcasting, cable transmission of a broadcast, rebroadcasting of a broadcast, and the communication to the public of works which had been broadcast. The Convention contains no definition of 'broadcast'. To some extent the meaning of the expression is evident from the terms of Article 11 bis (1) in the sense that a broadcast is something which the provision suggests occurred 'by wireless diffusion of signs, sounds or images'. An aspect of the definition which is, however, unclear is whether broadcast only means something that is diffused to the public.( Ricketson, 1987; 439ff ) Principles of statutory construction emanating from common law jurisdictions might suggest that the juxtaposition of the expressions 'broadcasting ... or the communication ... to the public' in the first paragraph of the provision mean that 'broadcasting' is not intended to be limited to communications to the public. However, as Ricketson suggests ( 1987, pp.439-440 ), it is more likely that the delegates responsible for the insertion of Article 11 bis (1) regarded the notion of a 'broadcast' as so obviously involving a communication to the public as to render an express provision to this effect redundant.[4] Even accepting that this is the case, such a definition does not assist much in the resolution of difficult issues involving the time when, place where, and entity by which, a broadcast is made.(For a comprehensive discussion of these issues, see Ricketson ( 1987, pp. 440-447 ) In a nutshell, these issues resolve themselves into three questions. First, is a broadcast made at the time it is diffused by the broadcaster or at the time it is received by the public? Secondly, is a broadcast made at the place where it is diffused or the place where it is received by the public or both? This obviously has important ramifications with respect to the proper national law to be applied in a copyright infringement case, particularly if the country from which the broadcast emanates and the country in which it is received are not both members of the Berne Union. Thirdly, where a broadcaster injects material into a satellite (or some similar type of wireless diffusion technology) which then relays that material to members of the public, is the entity making the broadcast (and breaching the exclusive right) the original broadcaster or the owner of the satellite? Despite numerous international attempts to resolve these questions,( Ricketson, 1987; pp. 442-447 ) no unanimous resolution has been achieved. It may be the case that, in certain circumstances, communications carriers are broadcasters. Certainly, as is discussed below, the majority of judges sitting in the Full Federal Court of Australia ((1995) 60 FCR 221; (1995) 131 ALR 141) and the High Court of Australia in Telstra v APRA thought so. However, from the point of view of communications carriers the first paragraph of Article 11 bis (1) carries a more frequently occurring danger of copyright infringement where the carrier is the owner of a satellite or something similar, which relays broadcast material to members of the public. Of course, for reasons which have been mentioned, liability under the first paragraph for this sort of activity is contentious since it is unclear whether the broadcast was being made by the original diffuser of the material or the owner of the satellite. Nevertheless, due to the interpretational difficulties, the second paragraph of the Article, which gives exclusive rights in respect of rediffusion of a broadcast, must be regarded as giving rise to more obvious risks of infringement by communications carriers. The second paragraph catches rebroadcasts of broadcast material containing the copyright work or communications of such broadcasts to the public by wire, but only where the rebroadcast is made by a different entity than the entity making the original broadcast. Clearly, where material containing the copyright works has been directly and unambiguously communicated to the public by the original diffuser, the picking up and rediffusing of such work to the public after that broadcast has been made amounts to a breach of the copyright owner's exclusive rights. Regrettably, not all factual situations fit so easily within the terms of the paragraph. This is a consequence of the ambiguities, mentioned earlier, which attach to the meaning of 'broadcast' in the first paragraph of the Article. Where the factual situation involves the original communication of material containing the copyright works to another party, which then diffuses it to members of the public with or without the assistance of wires, the rediffusion will only breach the second paragraph of the Article if the first communication is regarded as a broadcast. Since the first communication in this example might be said not to be to the members of the public, there may be an arguable case that it is not a broadcast. In the absence of a broadcast it is difficult to see how a rebroadcast could occur. If this line of argument prevails then in these factual circumstances it seems possible that a wireless diffusion by the rediffuser to the public involving copyright material would amount to an infringement under the first paragraph as a broadcast. However, it is difficult to see how a diffusion by wire to the public of something which did not amount to a broadcast in the first place would be caught at all under this Article. On the other hand, and staying with same fact situation, if the original communication to a satellite or wire diffusion system is regarded as a broadcast to the public on the basis that the entire series of technical events from that original communication to the time that the material reaches the public is one act of broadcasting [5] then the activities of the operator of the satellite or wire diffusion system cannot be regarded as a rediffusion since they are part of the original broadcast process. If all this were not difficult enough to piece together, one must also add into the concoction Articles 11(1), 11 ter (1), 14(1) and 14 bis (1). Article 11(1) confers on copyright holders of dramatic and/or musical works the right to authorise a communication to the public of performances to their works.[6] While this provision catches the diffusing of certain types of unauthorised works to the public by wire where the material has not first been broadcast by someone else ( Ricketson, 1987; p 451 ) it is limited in scope. This is because the provision only addresses itself to 'performances' and does not address the issue of diffusions of, amongst other things, literary and artistic works. So far as literary works are concerned, Article 11 ter (1) then steps in to confer on copyright holders the right to authorise communications to the public of the recitation of those works.[7] Again the provision is limited. Where literary or artistic works are adapted or reproduced for the purpose of a film then Article 14(1) is to similar effect, although it only applies to communications by wire.[8] Article 14 bis (1) gives the same rights in relation to films, as Article 14(1) gives to literary and artistic works.[9] None of these provisions mention the concept of broadcasting, and Article 11 bis (1) only addresses the issue of broadcasts containing literary and artistic works. Thus, these other articles are complementary to each other and to Article 11 bis (1) but they hardly fit together seamlessly, nor do they comprehensively cover all the different types of diffusions to the public of different types of copyright works. One particularly difficult issue which Article 11 bis (1) raises is the question of who is the broadcaster. An argument might have been made that the broadcaster is the person who not only transmits the signals, but who is also responsible for composing the content of the broadcast Were such an argument to be accepted then it would be likely to let communications carriers off the hook; at least it would do so for those who were performing their traditional limited role of transmitting the signals. However, there are two main reasons for suggesting that such a relatively narrow consensus on the identity of the broadcaster was never reached in the international community. The first reason relies on an assumption that the notion of rebroadcasting in the second paragraph of the Article has a certain identity with that of broadcasting in the first paragraph. If rebroadcasting does mean, as suggested above, the process of picking up and rediffusing a previously completed broadcast then the notion of a rebroadcaster does not appear to have anything to do with responsibility for the composition of the content of the rebroadcast. Accordingly, if the two concepts are only technically differentiated by the repetition involved, then one might conclude that the notion of broadcaster does not necessarily mean the broadcaster must be responsible for composing the content of the broadcast. The second, and perhaps more compelling reason, for concluding that the person infringing copyright by making a broadcast containing the copyright works does not have to be responsible for the composition of the content of the broadcast arises from a controversy about the meaning of 'broadcast', reference to which has already been made. The argument which took the line that where an entity injects a satellite with the content of a broadcast and the satellite then diffuses that material then the broadcast is made by the operator of the satellite rather then the 'injecting' entity would have been a complete non-starter had there been international consensus to the effect that a broadcaster was the person responsible for composing the content of the broadcast. As Ricketson shows,( 1987, pp. 442-447 ) the argument was far from being a non-starter. If, under Article 11 bis (1), the broadcaster does not have to be the person responsible for composing content then this obviously makes communications carriers all the more vulnerable. 2.2 The New WIPO TreatiesMuch of the impetus for change to the broadcasting and performance rights in the Berne Convention is evident from the foregoing discussion. Article 11 bis (1), in particular, is plagued by too many differences of opinion over its scope to make it a workable basis for achieving legislative harmonisation among contracting states. Further, the peculiar relationship between Articles 11(1), 11 bis (1), 11 ter (1) and 14(1) makes life difficult in an environment where a the whole range of copyright works can be diffused or performed to the public with or without the aid of wires. The Convention's failures in this respect are all the more noticeable because of the global nature [10] of broadcasting and communications technology. Technological developments serve only to exacerbate the shortcomings of the pre-1996 Convention as a tool of legal harmonisation. In the present context, there are two related areas of technological development since the 1967 and 1971 Stockholm and Paris Revisions of the Convention which have precipitated amendment to the Berne Convention. These are, first, the ability to produce copyright works in digital form; and secondly, the new means of transmitting or delivery copyright works, in particular, the development and widespread use of the Internet.( Dixon and Hansen, 1996 ; pp,605-607 ) Not only is digitisation creating a world of intangibles ('the virtual world'), it has also made it extremely cheap, easy and quick to make excellent copies of works and distribute them widely. This means that the scope for economic loss to the author is considerably increased. When one adds in the width and speed of distribution on the Internet, then this economic loss may increase exponentially. Dixon and Hansen cite the following example of Internet distribution of a copyright work:
The potential for this type of behaviour to damage the ability of authors and creators to control the communication of their work and to gain financial recompense as the result of the exploitation of their work strikes at the heart of some of commonly asserted values of copyright law.[11] These values are partly to do with a conception of human rights and partly to do with the more utilitarian concern to encourage creativity and the dissemination of the fruits of that creativity. The former has it that people have a basic right to the protection of their literary or artistic productions,[12] while the latter proceeds upon the basis that financial reward is needed in order to encourage creativity because creativity is essential to social development.[13] If copyright law is unable to protect these values then it is in a parlous state. The development of the Internet and other similar forms of transmission has also had implications for copyright law which go beyond its abilities to achieve rapid and widespread delivery. In particular, while such services involve mass distribution, they involve a move away from concepts traditionally associated with broadcasting. Rather than someone in the position of the broadcaster composing a broadcast to be sent out to the public at a particular time selected by the broadcaster, material is made available to individual users to access at will. The facilitation of all this interactivity has largely relied, so far, on the use of terrestrial telephone lines and thus greatly increased the role which communications carriers have in transmitting copyright works. It has also spawned a new cast member in the form of the ISP, which places the material in question on servers and thereby provides a bridge between the communications carrier and the individual users. In response to the existing difficulties in the Berne Convention and the difficulties caused by rapid technological development WIPO established a Committee of Experts on a Possible Protocol to the Berne Convention in 1991, and in 1992 it established a Committee of Experts on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms. The new treaties, which are the work of these Committees of Experts, do not solve all the problems in this area in the Berne Convention. To do so would have been a very tall order and would arguably have required the deletion of some of the existing provisions of the Berne Convention. This sort of task is not the aim of the WIPO Copyright Treaty which supplements the Berne Convention rather than revising it. The Treaty operates as a special agreement under Article 20 of the Berne Convention and only binds those members of the Berne Union which ratify it. Subscribing states that are not members of Berne are required to comply with the substantive provisions of the Berne Convention.[14] According to Article 20, this new Treaty will come into effect three months after instruments of ratification or accession have been deposited with the Director General of WIPO by thirty states. The requisite number of instruments had been received by 19 September 1997.[15] In the context of the present inquiry into the possible liability for copyright infringement of communications carriers, the important provision of the new Treaty is Article 8, which provides as follows:
The Article appears to add to the coverage already provided by the Berne Convention in at least two ways. First, it supplements Article 11 bis (1) by giving exclusive rights in respect of diffusion of literary and artistic works by wire. Secondly, it gives exclusive rights with respect to the communication to the public of text and images, which extends the protection for literary and artistic works in Articles 11 ter (1) and 14(1). The Article also brings within the notion of communication to the public, the making available of literary and artistic works so that they may be accessed at any time by individual members of the public. This is clearly intended to deal with the storage copyright works on such things as the World Wide Web. The WIPO Performances and Phonograms Treaty splits the concepts in Article 8 of the Copyright Treaty into two free standing rights, rather than conceptualising the rights of making available to the public as an aspect of communication to the public. Articles 10 and 14 of the Performances and Phonograms Treaty give phonogram performers and producers, respectively, the right to authorise the making available to the public of their performances and recordings at a time chosen by individual members of the public.[16] Article 15(1) gives performers and producers of phonograms the right to a single equitable remuneration in respect of broadcasts and communications to the public.[17] The divorce of the two concepts is a pity. On its own Article 8 of the WIPO Copyright Treaty might have suggested an international consensus to the effect that making available to the public at a time chosen by individual members of the public was an aspect of communicating to the public. This might have cast light on, for example, the exclusive rights which the Berne Convention confers on dramatic and/or musical works in Article 11(1)(ii). These types of copyright works are not covered by Article 8 of the WIPO Copyright Treaty, but it might have been helpful to know whether or not the making available on line of such works would be regarded as communicating them to the public within the meaning of Article 11(1)(ii). Bearing in mind the crucial role which communications carriers play at present in communicating material to the public and, particularly, in making material available to be accessed by members of the public at a time chosen by the individual member of the public in question, there was concern expressed about their exposure under Article 8 of the new WIPO Copyright Treaty.(see also Commonwealth of Australia, 1997; 3.22 ) As a result the Diplomatic Conference adopted an Agreed Statement in relation to Article 8 which reads as follows:
It should be noted that this is not a blanket exemption from liability for communication carriers. It would only exempt them from liability in respect of the provision of 'physical facilities', and not if they extended their operations to other activities more akin to those of a network or service provider.(see also Commonwealth of Australia, 1997; 3.25 ) Of more concern, however, is the fact that the Agreed Statement only provides that provision of facilities does not amount to a communication. It does not address the question of liability for authorising an infringement. This issue is addressed in the next section, which also looks at the Australian proposals for implementing the new Treaty provisions. 3. The Position of Communications Carriers3.1 Lessons from Telstra v APRAThe decision in Telstra v APRA related to music played on hold to users of mobile telephones and users of conventional terrestrial telephones in three different situations. These were summed up in the joint judgment of Dawson and Gaudron JJ in the High Court of Australia as follows:
The High Court judgments concentrated on two contentions of APRA. One was that playing music on hold to persons using mobile phones constituted a breach of the exclusive right of the copyright holder in s 31(1)(a)(iv) of the Copyright Act 1968 (Cth) to broadcast a literary, dramatic or musical work. The other was that playing music on hold to persons using conventional phones breached the exclusive right in s 31(1)(a)(v) to cause the work to be transmitted to subscribers to a diffusion service. Both of these arguments were sustained by a majority of the High Court, although the second one proved to be the more contentious of the two.[18] The decision on the second issue turned on the interpretation of a piece of anfractuous drafting in s 26, which was (apparently) intended to amplify s 31(1)(a)(v). As events in the form of the WIPO Copyright Treaty and the Australian proposals to implement this Treaty in the Government's paper, Copyright Reform and the Digital Agenda , have overtaken Telstra v APRA, the reader's patience will not be strained with an assessment of the High Court's analyses of these provisions. Rather it is proposed to note some cautionary tales arising from the case. The first is that, at least in some of the situations involved, liability for copyright infringement was imposed on Telstra irrespective of its ability to control the content of the transmissions. This does not really seem to be an acceptable state of affairs if one considers it in the light of liability for the provision of Internet services (that is, something useful). It may leave the communications carrier in a situation where its only choice is to provide the infrastructure and generate the electro-magnetic currents which carry the material or not to do so. It is arguable that the interests of society would not be advanced by a decision by communication carriers to stop making their hardware available for the transmission of material which may contain copyright works. This point is explored further in Part 4 below. The second cautionary note arising from the case, especially if one considers the application of its general approach to things such as Internet, is that communication carriers are desirable defendants. They are well resourced and easily identifiable, and as Telstra v APRA shows they even collaborate in the bringing of test litigation. In the range of possible defendants to a breach of copyright action communication carriers seem a much better bet than individual end users who may be difficult to identify and not worth suing anyway. Communications carriers are also probably more desirable defendants than at least some, if not all, ISPs. All this means that unless they are clearly protected from liability, they are very likely to be selected for litigious attention. The costs of such actions, including the costs of any pecuniary remedies, are likely to met by blanket increases in charges to all the users of all the services of the communications carriers, whether or not such users have ever been complicit in a breach of copyright. Some similar result, enabling Telstra to pay royalties to APRA, will surely be the practical outcome of the litigation in Telstra v APRA . The final points here both relate to the process of statutory construction. The first is the somewhat obvious point that statutory provisions are often applied to technology to which it seems unlikely the statutory provision in question was intended to apply. The majorities in the Full Federal Court and the High Court, clearly came to the conclusion in Telstra v APRA that, inferring intention from the actual words of the relevant provisions, the legislature intended the generation of electro-magnetic impulses along telephone wires for the purpose of playing music on hold to users of the telephone system to be a transmission to subscribers to a diffusion service. (This, notwithstanding the fact, as a number of the judges pointed out,[19] that few people sitting on the end of a telephone want to hear music on hold and quite a number do not want to receive such a service.) In the real world, some people might regard this judicial assertion of legislative intention with scepticism, especially as it seems just as likely that the relevant provision was intended to cover the rediffusion of broadcast material by cable. One point which all this serves to emphasise is the need for legislation in this area to be framed in a technology neutral way, (See also, van Caenegem ( 1995; p343-344 ) and Loughnan ( 1997 ). but also in a way which makes it clear what was intended to be covered and what was not. There is another matter relevant to interpretation which is related to the point made immediately above. Since the developments in this area appear to be so dependant on those occurring on the international stage, one might have thought that judges would derive interpretational assistance from the relevant international instruments. Such judicial methodology also seems desirable from the point of view of securing a uniform international approach to a global phenomenon. Telstra v APRA is not, however, a ringing endorsement of the feasibility of such an interpretational approach. Kirby J in the High Court noted in his judgment that the legislative history of s 31(1)(a)(v), which confers the exclusive right to cause the work to be transmitted to subscribers to a diffusion service, 'suggests a purpose of providing the very broad protection envisaged by the successive forms of Article 11 of the [Berne] Convention'.(Telstra v APRA at p23 and see generally pp. 22-24) He was referring here, in particular to Articles 11(1) and 11 bis (1). Dawson and Gaudron JJ agreed with this analysis.( Telstra v APRA at p2 ) McHugh J, on the other hand, took the view that the specific source of s 31(1)(a)(v) and its alleged explanatory section, s 26, was Article 11 bis (1).(Telstra v APRA at 11) This difference of opinion over the source of these legislative provisions was crucial to the outcome of the case. In a nutshell, if the sections are based upon Article 11 bis (1) then, as shown in Part 2 above, they only apply to the diffusion by wire of material that has been previously broadcast. This was not true of all the material played to users of telephones on hold. Accordingly, McHugh J interpreted the ambiguous words of s 26 as being limited in this manner and, because of the way the case had been put, held that Telstra had not breached the exclusive right in s 31(1)(a)(v). As Kirby J had taken the view that the relevant sections were based not just on Article 11 bis (1), but also on the general exclusive right of public communication of musical and/or dramatic works in Article 11(1) of the Berne Convention, he read s 26 more broadly so as not to limit it to material which had been previously broadcast. The result that he came to the opposite conclusion on the infringement issue to that of McHugh J. There appears to be some merit on both sides of this difference of opinion. It might be said, first, in favour of the view of McHugh J, that the relationship between Article 11(1) and s 31(1)(a)(v) is a little strained since Article 11(1) refers only to musical and/or dramatic works, whereas s 31(1) refers also to literary works. On the other hand, it is always open to a contracting state to provide greater protection than stipulated in a Convention. Secondly, the constructional aid of ejusdem generis might very well have been intended to apply to the crucially important expression 'broadcast or other matter' in s 26(1)[20] so as to limit the meaning of 'other matter' to 'other matter in the nature of the broadcast' and thus show an intention that the section conform with Article 11 bis (1).See McHugh J, ( Telstra v APRA at p11 ) One does wonder, however, why it was thought necessary to insert 'other matter' at all. Thirdly, and in favour of the view of Kirby J, s 26(1) is clearly not on all fours with Article 11 bis (1) since, unlike that Article, it covers the situation where the diffusion of material by wire has been caused by the same entity as that making the broadcast.[21] The point is that the relationship of the provisions to the Convention is quite uncertain. This makes it extremely difficult for judges to use internationally accepted interpretations of such provisions in interpreting legislation allegedly based on an international instrument. This is a regrettable state of affairs. 3.2 The Australian Proposals for ReformThe current Australian proposals for implementing Article 8 of the WIPO Copyright Treaty,[22] contained in the Discussion Paper Copyright Reform and the Digital Agenda , bifurcate the provisions of Article 8. This bifurcation is consistent with the approach noted in Part 2, above, which has been taken to the rights of performers and phonogram producers in the new WIPO Performances and Phonograms Treaty. Proposals for the implementation of the relevant provisions of this latter Treaty, as noted in Part 2, are also included in the Discussion Paper. The proposed provisions are intended to replace the Copyright Act's existing wireless broadcasting and diffusion rights( Commonwealth of Australia, 1997; para 1.10 ) which received so much attention in Telstra v APRA . The new rights proposed are what are described as a 'transmission right' and a 'right of making available to the public'. The transmission right is intended to be a 'broadly-based technology-neutral ... right'( Commonwealth of Australia, 1997; para 4.9 ), which would be separate from the existing public performance rights in the Act. The Discussion Paper describes the right as follows:
It should be noted that it is intended to amend the definition of 'broadcast' so that it covers transmissions with or without wires. The right of making available to the public also applies to activities engaged in with or without wires. The Discussion Paper describes this right as follows:
The paper notes the potential overlap between this right and the exclusive right of copyright holders to authorise any reproduction of their work. It gives, as an example of such an overlap, the uploading of a copy of an article onto an Internet site which may be accessed by the public.( Commonwealth of Australia, 1997; para 4.16 ) On the other hand, the paper argues that there are activities which might breach the new making available right without breaching the reproduction right. The example given by the paper is the connection of a file server containing copyright material to a publicly accessible network.( Commonwealth of Australia, 1997; para 4.17 ) A particular concern of the paper is the issue of the liability of communications carriers and ISPs under this proposed new regime. In accordance with the Agreed Statement on this topic in the proceedings of the Diplomatic Conference [23], the paper adopts the position that communications carriers should not be liable for a breach of the proposed new transmission right when they acting in their traditional role as providers of infrastructure and generators of the impulses travelling along that infrastructure. This end is to be achieved by providing that the person who makes the transmission is the person responsible for its content. For some reason, which is a little obscure, the possible liability of communications carriers in respect of the right of making available to the public is not directly addressed. Presumably, however, since the Agreed Statement covers the whole of Article 8 of the WIPO Copyright Treaty, it is intended to offer immunity to communications carriers from primary liability in relation to this right as well. The Discussion Paper takes the line that, provided they cannot be said to be responsible for the content of material which may be accessed by the public, ISPs would also be immune from primary liability.( Commonwealth of Australia, 1997; para 4.72 ) This approach to the primary liability of communications carriers and ISPs seems workable, although of course much will depend on the care with which the eventual statutory provisions are drafted, especially those dealing with the concept of responsibility for content. Much more contentious, is the Discussion Paper's approach to the issue of liability for authorising infringement. 3.3 Liability for Authorising InfringementThe Discussion Paper accepts the conclusion in the earlier report of the Copyright Convergence Group ( 1994 ) that communications carriers could not be held liable, on the basis of present law, for authorising an infringement.( Commonwealth of Australia, 1997; para 4.71 ) According to the Discussion Paper this law may, however, catch some of the activities of ISPs,( Commonwealth of Australia, 1997; paras 4.72 and 4.80 ) although the paper invites submissions on whether or not ISPs should be exempted from such liability where they provide copyright notices warning subscribers about copyright and the permitted uses of copyright material.( Commonwealth of Australia, 1997; para 4.74 and 4.83 ) While it is possible that ISPs might become liable as authorisers of infringement, it seems very dangerous to be so sanguine about the immunity of communications carriers in this respect. The main Australian law on authorising infringement was laid down by the High Court in University of NSW v Moorhouse . That case famously held that 'authorise' in this context means 'sanction, approve or countenance'. The University of NSW were held liable as authorisers for providing photocopy machines for general use by patrons of the library, without adequate notices warning against use of the machines to infringe copyright. It is quite clear from the case, as is noted in the Discussion Paper ( Commonwealth of Australia, 1997; para 4.79 ), that actual knowledge of the infringements taking place using the apparatus supplied by the authoriser is not required in order for authorisation liability to arise. It does seem that some ability to control infringement is required before liability for authorisation is required. If, on the basis of the mere supply of a photocopying machine without adequate monitoring or warnings, a library can become liable as for authorising infringement, it is quite unclear why the person who provides the infrastructure for a transmission, including generating the relevant electro-magnetic impulses or other signals, would be in the clear. The argument that the communications carrier would be immune seems to depend upon two assertions: first, the assertion that the carrier does not have the power to prevent infringement; and secondly, the lack of proximity between the communications carrier and the primary infringer. However, communications carriers do have the power to prevent infringements. It is the same power which university libraries have to prevent infringements on their photocopying machines. This is the power to prevent the equipment being used at all for anything which has the capacity to infringe copyright. As to the issue of proximity between the communications carrier and the actual infringer, it is true that there is not the same possibility of immediate physical proximity. Nevertheless communications carriers might well be regarded as digitally proximate to the broadcasters whose programmes they cause to be diffused through their infrastructure and to the Internet service providers, content providers and billboard services which use the infrastructure to make material available to the public. The point here is not to show conclusively that communications carriers will become liable as authorisers of infringement, it is to show that there is the possibility that they may do so under present law. This possibility ought to be taken seriously by legislators because if it is possible, the desirability of communications providers as defendants means that some plaintiff (probably a collecting society) will try to make it a reality. The next question is: does taking the possibility of liability seriously mean that there should be legislative intervention to protect communications carriers? 4. Should Communications Carriers be Copyright Sentinels in the Digital Age?The question posed in this part should be answered in the light of the goals of copyright law. Two of the core values of copyright law have already been mentioned, in Part 2 above.[24] It will recalled that one of these values dealt with the need to confer copyright protection in order to encourage the development of cultural works because of the importance of such works to the process of 'social, economic and cultural development'.( WIPO, 1978 ) Embedded in this value of copyright, it seems, is the importance of the idea of freedom of communication.( van Caenegem, 1995; pp. 323-326 ) That is, the link between the production of cultural works and social, economic and cultural development lies, at least in part, on the ability to disseminate and communicate those works. To some extent, copyright law finds itself on the horns of dilemma here. In order to encourage production of copyright works it allows copyright holders to control reproduction and dissemination of their work thus giving them the potential to benefit financially from that reproduction and dissemination. On the other hand, in order to reap the social, economic and cultural development benefits it must encourage dissemination. Further there is a strong argument to be made that copyright law needs to take on board the importance of the role of free speech principles in securing the circulation of ideas, opinions and information.(see Macmillan Patfield, 1997b ) To say all this is to say nothing more profound than that, in order to achieve both its own goals and to accommodate the values of free speech, copyright law needs to find some way of striking a balance between copyright holders and users of copyright works.( van Caenegem, 1995; pp.325-326 ) ( Waldron, 1993 ) ( Macmillan Patfield, 1997a ) In the digital environment the role of those who facilitate communication and dissemination of works is crucial in striking this balance appropriately In order to analyse the appropriate copyright treatment of communications carriers, it is necessary at this point to refer back to the argument in Part 3 above concerning the possibility that such carriers might become liable for authorising infringement. Assuming that such liability might attach to communications carriers, they are in a difficult position. Like the University library they can solve the problem of possible liability by stopping the use of the equipment/infrastructure for carrying any material which might breach copyright. It is not quite as clear whether it makes sense in the context of the technology to say that they can protect their position by giving adequate copyright notices to primary infringers. (This, of course, may be enough to protect them from liability altogether, but such a conclusion is far from certain.) Assuming that the giving of adequate copyright notices is not feasible, the only choices for the communications carriers would be to restrict or deny the use of the infrastructure for the carriage of material which might contain copyright works, or to accept the possibility of liability and to make appropriate contingency plans for payment of compensation to copyright holders. If the first option were chosen, this would clearly not serve the goals of copyright to the extent that they are based on the importance of communication and dissemination of cultural works. Thus it would considerably skew the balance between copyright holders and users of copyright material towards the protection of copyright holders. It is arguable, however, that even the interests of copyright holders would not be advanced by a decision to withdraw communication infrastructure from facilities such as the Internet. Generally, the opportunity to disseminate work on line greatly increases the opportunities to publicise the existence of the work and this may lead to opportunities for remunerative exploitation of the work. If communications carriers chose, on the other hand, to continue to allow their infrastructure to be used in the transmission of copyright works, but to make financial provision for the possibility of infringement, this might well involve a degree of distributive injustice.( Loughnan, 1997 p19 ) This would arguably be caused by a decision to increase the cost of infrastructure services to all users of the infrastructure for whatever purpose. Such a scheme, which as already noted may very well be the end result of Telstra v APRA , might involve members of the general public paying to defray the cost of copyright liability in respect of copyright material which they may never see, nor have the slightest interest in seeing. Such a conclusion would effectively mean that copyright holders were remunerated out of something like a general tax. This would involve a considerable departure from the present internationally accepted methods which copyright law has employed to achieve its goals. Alternatively, as Loughnan suggests, communications carriers might defray the costs of liability by demanding contractual indemnities from ISPs in exchange for the use of the infrastructure.( Loughnan, 1997 p22 ) This might not cause problems of distributive injustice. As is noted below, the case for imposing liability on ISPs is probably stronger than that for imposing liability on communications carriers. If this is so, then any redistribution of communication carrier liability to ISPs seems uncontroversial, particularly as the practical reason for incurring it may be as a result of the greater desirability of communication carriers as defendants. Nevertheless overall, it would be more sensible to simply remove the possibility of communications carriers being liable for authorising infringement, while leaving in place the possibility of ISP liability. In terms of the operation of on line systems, ISPs are 'conceptually distinguishable' from communications carriers.( Loughnan, 1997 p20 ) The reason for this is that ISPs do have a considerably greater ability to monitor material on their systems and to remove infringing material. ISPs are the gatekeepers of the Internet. They come in all sizes ... from well-known continental wide networks such as Netscape, Netcom, America Online and Compuserve, to hundreds of small and medium-sized ISPs that serve local and regional constituencies. All have one thing in common - a customer base that needs them to get onto the information highway. ... They have the ability, of course, to dictate the online environment in which their customers are operating through the use of written control policies and guidelines. Furthermore they can utilise and implement technology, including software, that is capable of automatically screening material on the network. ( Cook,1996 ) It may, of course, be that this greater ability to monitor would result in ISPs being held liable as authorisers where communication carriers were not. However, as a policy matter it seems undesirable to leave this to the vagaries of existing copyright authorisation law, which was formulated well before the digital environment of on line accessibility was a reality. The effect on the goals of copyright law of allowing some type of liability to fall on ISPs does not seem to be as dramatic as allowing this liability to fall upon communications carriers. On the plus side, the imposition of liability might doing something to redress the reputedly significant amount of copyright material ( Cook, 1996; p18 ) which is made freely available over the Internet without the copyright holders' authorisation. It is true, that the imposition of such liability would be likely to limit the amount of material available online and this, of course, militates against the communication interest which is inherent in the values of copyright law. However, this limitation may be a fair way to strike the balance between copyright holders and users. From the point of view of the aims of copyright law, what is much more worrying about the imposition of liability on ISPs is that, if the result is to mandate the complete removal of certain copyright material, this may pre-empt debate about the extent of the permissable use of some material on the basis of fair dealing.( Loughnan, 1997 p23 ) ( van Caenegem;1995 ) ( Kuhn, 1996 ; pp.191-193 ) Since the fair dealing exceptions for things such as research and study, criticism and review, and news reporting, (See, eg, ss 40-42 of the Australian Copyright Act 1968 (Cth). are intended to aid in the appropriate fixing of the balance between copyright owner and user,( Macmillan Patfield 1997a ) this may be regarded as a worrying development. Also, if ISPs are required closely to monitor material then this may have a rather obvious negative effect on privacy and freedom of speech on the Internet. Such a negative effect might not, of course occur, if the liability on ISPs is imposed not with the rather blunt and old-fashioned instrument of liability for authorisation, but with a more sophisticated instrument, such as a qualified obligation to remove material on notice from copyright holders.( Cook;1996 p19 ) It is fair to say that the jury is still out on the question of whether liability should be imposed on ISPs and what form that liability might take.(see eg, Cook ( 1996 ), Loughnan ( 1997 ), Tickle ( 1995 ), Haftke ( 1996 ), Hagen ( 1996 ), Melone ( 1997 ). However, it is the contention of this paper that because of the differences in the position of ISPs and communications carriers the latter should be unambiguously protected from any type of copyright liability in respect of their traditional role as carriers. 5. ConclusionsThis paper has argued that the case for complete exemption for communications carriers from any type of copyright liability in respect of the provision of infrastructure, including the generation of electro-magnetic impulses or other signals, is very strong. Such a position appears to have been recognised, in part, by the international community in the Agreed Statement on Article 8 of the WIPO Copyright Treaty, which refers not only to that Article, but to the other Berne Convention provisions. However, the Agreed Statement is narrow and leaves open the possibility of copyright infringement liability being imposed, not for a primary infringement, but by way of authorisation of infringement or some analogous method. The desirability of achieving a consistent international approach to the global issue of the communication to the public of material containing copyright works ought to be high on the agenda of individual jurisdictions. In order to achieve such consistency it is important that, as far as possible, jurisdictions do not put themselves in a position where their national courts are unable to take advantage of an internationally agreed position because of a vague or unclear relationship between national law and the international convention provisions upon which it is allegedly based. A possible reading of Telstra v APRA is that the court was hindered in its ability to interpret a difficult statutory provision by an inability to obtain clear guidance on the relationship between that provision and the relevant Convention provisions. It may be that in proposing to implement Article 8 by the bifurcation of the exclusive right contained in it into two free standing rights, the Australian Government is creating another problem of this nature for its courts. The more often such problems arise, the less likely it becomes that substantive harmonisation will be achieved. Bearing all this in mind, and also taking into account the attractiveness of communications carriers as defendants in a breach of copyright action, it seems unfortunate that the Australian Government is not, at this stage, contemplating an express legislative exemption for communications carriers. Although an exemption from liability for authorising infringement would arguably go further than the Agreed Statement in relation to Article 8 of the WIPO Copyright Treaty, this might not be a very serious problem. It is common for legislation to go further than the minimum requirements laid down in international conventions such as the Berne Convention. Serious difficulties only seem to arise when it is unclear, as it was in Telstra v APRA , whether the provision is intended to go further than Convention provisions or the consensus represented by an Agreed Statement. In any case, it is to be hoped that the development of an international consensus on the complete exemption from copyright liability for communications carriers is not too far away. ReferencesBlakeney, Trade Related Aspects of Intellectual Property Rights (1996), ch 4. Commonwealth of Australia, Copyright Reform and the Digital Agenda: Proposed Transmission Right, right of Making Available and Enforcement Measures (July 1997) < http://www.law.gov.au/agd/Department/Publications/publications/digital.htm >. van Caenegem, 'Copyright, Communication and New Technologies' (1995) 23 Federal Law Review 322, 325 Cook, 'Why Internet Service Providers Should be Copyright Guardians' (1996) 60 Copyright World 18. Copyright Convergence Group, Highways to Change: Copyright in the New Communications Environment (1994) Dixon and Hansen, 'The Berne Convention Enters the Digital Age' [1996] 11 EIPR 604, 605-607. Haftke, 'Net Liability: Is an Exemption from Liability for On-Line Service Providers Required?' [1996] 2 Entertainment Law Review 274; Hagen, 'On-Line Service Provider Liability: The Latest US Copyright Conundrum' [1996] 7 Entertainment Law Review 274; Kuhn, 'A Dilemma in Cyberspace and Beyond: Copyright Law for Intellectual Property Distributed Over the Information Superhighways of Today and Tomorrow' (1996) 10 Temple International and Comparative Law Journal 171, 191-193 Loughnan, 'Service Provider Liability for User Copyright Infringement on the Internet' (1997) 8 Australian Intellectual Property Journal 18, 27. Macmillan Patfield, 'Legal Policy and the Limits of Literary Copyright' in Parrinder and Chernaik (eds), Textual Monopolies: Literary Copyright and the Public Domain (1997a). Macmillan Patfield, 'Towards a Reconciliation of Free Speech and Copyright' in Barendt (ed), The Yearbook of Media and Entertainment Law (1997b) Melone, 'Contributory Liability for Access Providers: Solving the Conundrum Digitalization Has Placed on Copyright Laws' (1997) 49 Federal Communications Law Journal 491 < http://www.law.indiana.edu/fclj/pubs/v49/no2/melone.html >. Mitterand Cyber Book Spins Tangled Legal Web', Agence France Presse International (24 January 1996), Q1:70 Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 (1987), 439ff. Tickle, 'The Vicarious Liability of Electronic Bulletin Board Operators for the Copyright Infringement Occurring on their Bulletin Boards' (1995) 80 Iowa Law Review 391; Waldron, 'From Authors to Copiers: Individual Rights and Social Values in Intellectual Property' (1993) 68 Chicago-Kent Law Review 841 WIPO Guide to the Berne Convention for the Protection of Literary and Artistic Works (WIPO Publication No 615(E), 1978) CasesPlayboy Enterprises Inc v Frena , 839 F Supp 1552 (Fla 1993). Religious Technology Center v NETCOM , 907 F Supp 1361 (Cal 1995). Sega Enterprises Ltd v Maphia , 857 F Supp 679 (Cal 1994). Telstra Corporation Ltd v Australasian Performing Right Association Ltd High Court of Australia, unreported, 14 August 1997; < http://www.austlii.edu.au/au/cases/cth/high_ct/unrep338.html > University of NSW v Moorhouse (1975) 133 CLR 1. Footnotes[1] See, eg, Playboy Enterprises Inc v Frena , 839 F Supp 1552 (Fla 1993); Sega Enterprises Ltd v Maphia , 857 F Supp 679 (Cal 1994); Religious Technology Center v NETCOM , 907 F Supp 1361 (Cal 1995). [2] The WIPO Copyright Treaty < http://www.wipo.org/eng/diplconf/distrib/94dc.htm >and the WIPO Performances and Phonograms Treaty < http://www.wipo.org/eng/diplconf/distrib/95dc.htm >, both adopted on 20 December 1996. [3] Article 11 bis (1), as inserted by the Brussels Act (of the Berne Convention) of 1948, provided: Authors of literary and artistic works shall enjoy the exclusive right of authorizing: (i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images; (ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one; (iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work. [4] In reaching this conclusion Ricketson relies on two matters. First, the fact that records of the Brussels Conference suggest that the delegates at that conference did not mean to change the meaning of the equivalent provision regarding the exclusive right to broadcast in the Rome Revision of 1928 which referred to 'the communication of ... works to the public by radio-diffusion': Ricketson, (1987, p439). Secondly, such a definition had general international acceptance as shown by Article 28 of the Radio Regulations of the International Telecommunications Union, adopted in 1947: (Ricketson, pp. 440 & 440n) [5] An argument which appears to be based upon this approach was advanced by the Director General of WIPO, Dr Arpad Bogsch, at a meeting entitled 'Group of Experts on the Copyright Aspects of Direct Broadcasting by Satellite', which was jointly convened by WIPO and UNESCO and took place in Paris in March 1985: see Ricketson(1987pp. 443-444). [6] Article 11(1) provides: Authors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right of authorising: (i) the public performance of their works, including such public performance by any means or process; (ii) any communication to the public of the performance of their works. [7] Article 11 ter (1) provides: Authors of literary works shall enjoy the exclusive right of authorising: (i) the public recitation of their works, including such public recitation by any means or process; (ii) any communication to the public of the recitation of their works. [8] Article 14(1) provides: Authors of literary or artistic works shall have the exclusive right of authorising: (i) the cinematographic adaptation and reproduction of these works, and the distribution of the works thus adapted or reproduced; (ii) the public performance and communication to the public by wire of the works thus adapted or reproduced. [9] Article 14 bis (1) provides: Without prejudice to the copyright in any work which may have been adapted or reproduced, a cinematograph work shall be protected as an original work. The owner of copyright in a cinematograph work shall enjoy the same rights as the author of an original work, including the rights referred to in the preceding Article. [10] We use 'global' in this paper to refer to those matters with respect to which national boundaries are irrelevant; 'international' activities, on the other hand, are those conducted across national borders by essentially national actors: see further, Walker, Mellor, Fox and Francis, 'The Concept of Globalisation' (1996) 14 Company and Securities Law Journal 59. [11] See also van Caenegem, 'Copyright, Communication and New Technologies' (1995) 23 Federal Law Review 322, 325: '[I]f uncompensated, this form of access would leave a copyright owner with possibly inadequate rewards, and the balance between risk and incentive will be disturbed to a degree which will result in less than optimal production of copyright works.' [12] This is reflected in, eg, Article 27(2) of the Universal Declaration of Human Rights, which provides: 'Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.' [13] This is reflected in, eg, the Preface to WIPO's Guide to the Berne Convention for the Protection of Literary and Artistic Works (WIPO Publication No 615(E), 1978) which states: Copyright, for its part, constitutes an essential element in the development process. Experience has shown that the enrichment of the national cultural heritage depends directly on the level of protection afforded to literary and artistic works. The higher the level, the greater the encouragement for authors to create; the greater the number of a country's intellectual creations, the higher its renown; the greater the number of productions in literature and the arts, the more numerous their auxiliaries in the book, record and entertainment industries; and indeed, in the final analysis, encouragement of intellectual creation is one of the basic prerequisites of all social, economic and cultural development. For further discussion of the underlying values/rationales of copyright law, see Macmillan Patfield, 'Legal Policy and the Limits of Literary Copyright' in Parrinder and Chernaik (eds), Textual Monopolies: Literary Copyright and the Public Domain (1997). [14] This same device was used in the World Trade Organisation Agreement on Trade Related Aspects of Intellectual Property Rights, Article 9(1): see Blakeney (1996, ch4) [15] WIPO Website ; 'Signatories of Treaties Administered by WIPO Not Yet in Force' . For the ratification status of the WIPO Performances and Phonograms Treaty, see ibid . [16] Article 10 provides: Performers shall enjoy the exclusive right of authorising the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them. Article 14 provides: Producers of phonograms shall enjoy the exclusive right of authorising the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them. [17] Article 15(1) provides: Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public. [18] Although Gummow J at first instance in the Federal Court of Australia sustained neither of APRA's arguments: see APRA v Telstra Corporation Ltd (1993) 118 ALR 684. [19] See, eg, Gummow J, ( APRA v Telstra Corporation Ltd at p 690); Dawson & Gaudron JJ, ( Telstra v APRA at p 3); Kirby J, ( Telstra v APRA at p 20). [20] Section 26(1) provides: A reference in this Act to the transmission of a work or other subject matter to subscribers to a diffusion service shall be read as a reference to the transmission of the work or other subject matter in the course of a service of distributing broadcast or other matter (whether provided by the person operating the service or by other persons) over wires, or over other paths provided by a material substance, to the premises of subscribers to the service. (Emphasis added.) [21] See also, Ricketson (1987, pp. 450-451 and 451n). A passage from Ricketson (1987) is cited by McHugh J at Telstra v APRA (p 12), who points out that such an approach is not at odds with internationally accepted methods of giving effect to Article 11 bis (1). [22] Which, it seems, indicate an intention on the part of the Australian Government to accede to the Treaty, notwithstanding the fact that, at the time of writing it had not yet done so; nor had it acceded to the WIPO Performances and Phonograms Treaty: n 15 supra [23] It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention. |
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