Opinion Number. 1594



Key Legislation

CONSTITUTION s 51(xviii): COPYRIGHT ACT 1912 s 8: COPYRIGHT ACT 1911 (U.K.) (1 & 2 Geo. V c. 46) ss 25-27, 37: INTERNATIONAL CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS [1912] ATS 9 done at Berlin on 13 November 1908 (Berne Convention): International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations and Final Act done at Rome on 26 October 1962 [1992] ATS 29 (Rome Convention) art 11 bis

The Postmaster-General of the Commonwealth

The Postmaster-General has asked for advice as to whether it would be competent for the Commonwealth to establish a compulsory tribunal to determine disputes arising out of the use of records for broadcasting.

The Royal Commission on Performing Right recommended the establishment of a tribunal to determine disputes arising out of the performance in public of musical works and/or the use of records in public.

Under section 51(xviii) of the Constitution, the Commonwealth has plenary power to legislate with respect to ‘copyrights’.

In pursuance of this power, the Copyright Act 1912–1933 was enacted, section 8 of which provided that the British Copyright Act, subject to the modifications provided in the Commonwealth Act, is in force in the Commonwealth.

Having regard to the decisions of the United Kingdom courts in the cases of Messager v. British Broadcasting Corporation (1927 2 K.B. 543) and Gramophone Co. Ltd v. Stephen Carwardine & Co (1934 1 Ch. 450) it appears that under the British Copyright Act a gramophone record of a work in which copyright subsists may not be broadcast without the consent of both the owner of the copyright in the original work and the owner of the copyright in the record.

There is no provision in the British Copyright Act 1911 providing for the settlement of disputes arising out of the use of the public performance of musical works and/or the use of records in public and the question arises as to the power of the Commonwealth, in view of the adoption of the British Act, to constitute a compulsory tribunal.

Sections 25–27 of the Imperial Act relate to the application of that Act to
British Possessions.

The relevant portion of section 25 is as follows:

25. (1) This Act … shall extend throughout His Majesty’s Dominions:

Provided that it shall not extend to a self-governing Dominion, unless declared by the Legislature of that Dominion to be in force therein either without any modifications or additions or with such modifications and additions relating exclusively to procedure and remedies, or necessary to adapt this Act to the circumstances of that Dominion, as may be enacted by such Legislature.

Section 26 provides that a self-governing Dominion may repeal the Act so far as it is operative in that Dominion.

Section 27 provides that the legislature of any British possession to which the Act extends may modify or add to any of the provisions of the Act in its application to the possession but, except so far as such modifications and additions relate to procedure and remedies, they shall apply only to works the authors whereof were, at the time of the making of the work, resident in the possession, and to works first published in the possession.

Section 35 of the Act defines ‘self-governing dominion’ as including the Commonwealth of Australia.

It therefore appears that the Commonwealth is limited by section 25 of the British Act, when amending that Act in its application to the Commonwealth, to making ‘such modifications and additions relating exclusively to procedure and remedies or necessary to adapt the Act to the circumstances of the Dominion’, and therefore, the Commonwealth has no power to vary the Imperial Act in the direction of cutting down the substantive rights conferred by the Act itself.

Further, the Commonwealth is a member of the International Copyright Union and is bound by the terms of the International Copyright Conventions.

It is a fundamental principle of the revised Berne Convention that authors of any countries of the Union or their representatives shall enjoy in other countries of the Union for their works the rights which the respective laws grant to natives.

This provision has, however, been modified as to radio-communication by Article 11 bis of the Rome Convention to which the Commonwealth is a party.

Article 11 bis is as follows:

  1. Authors of literary and artistic works shall enjoy the exclusive right to authorise the communication of their works to the public by radiocommunication.
  2. The national legislation of the countries of the Union may regulate the conditions under which the right mentioned in the preceding paragraph shall be exercised, but the effect of those conditions will be strictly limited to the countries which put them in force. Such conditions shall not in any case prejudice the moral rights (droit moral) of the author, nor the right which belongs to the author to obtain an equitable remuneration which shall be fixed, failing agreement, by the competent authority.

If the Commonwealth had not adopted the Imperial Act, it would be competent for it to fix, failing agreement, an equitable remuneration for authors whose works are broadcasted, by the creation of a tribunal as the competent authority.

Many countries (including Canada) have created such tribunals but the equitable remuneration of authors and their assignees is the subject of difficulties in practically all countries. It is expected that the matter will be discussed at the forthcoming Brussels Conference.

Before a compulsory tribunal in accord with Article 11 bis of the Rome Convention could be created, it would, in my opinion, be necessary for the Commonwealth to repeal the British Act in its application to the Commonwealth and to legislate independently with respect to copyright. In view of the forthcoming Brussels Conference and the legal and international difficulties involved, it does not appear that the present is an opportune time to introduce a Bill for this purpose.

[Vol. 29, p. 159]