The judgement of Deane and Toohey JJ highlights the need to consider the overall benefit that copyright law provides in assisting political communication. In seeking to argue that copyright expansion has impacted negatively on political communication one may argue that as all expression, of which political communication is a subset, is automatically the subject of copyright regulation, that the law in fact inhibits political discussion between individual citizens. Arguably there is no incentive required for the production of political speech nor is there a need to provide such a long term of protection for the creators and publishers of political expression which presently stands at the life of the author plus seventy years.
In arguing that copyright expansion creates a litigious environment and threatens the ability of individuals to communicate about political matters, using Deane and Tooheys terms, it could be asserted that its impact in the digital environment detracts from the maintenance of an ordered and democratic society. Similarly it could be claimed that copyright expansion inhibits the production of peace and dignity for individuals, particularly if one were able to separate “individuals” (ie. Corporations) from individuals. Indeed there appears to be a reasonable basis to suggest that copyright expansion is beyond what is reasonably necessary in the circumstances.
The three areas highlighted from McHugh’s judgement provide further interesting guidelines on which to consider the Constitutional validity of copyright law expansion. The wide reaching process of representative government undoubtedly has the scope to include the production and communication of political music as well as other forms of expression. One argument may be that the right of the people to participate in the political process extends to the right to participate in the creation and dissemination of political culture. From this point of view the silencing effect of copyright expansion could be seen to have a wide reaching effect.
Similarly McHugh’s comments with respect to the availability of less harmful methods of achieving the goals of this legislation could be used to further an argument regarding the availability of blanket licensing as an alternative to the stifling impact of copyright legislation in the digital age.
McHugh’s comments with respect to the domination of the media by individuals or groups and the effect of this on the ability of the public to be informed about political matters could also be used to support a claim that the oligopoly structure of the music industry at present effectively silences independent expression. One, of course, would not therefore suggest that music should be banned altogether, but rather this would be a worthy point to make in advancing the availability of less harmful regulation of expression through the use of an alternative compensation scheme.
2. Comments that may detract from the application of the implied right to political communication to copyright expansion.
Mason's characterisation of a difference between information and ideas, and the activities or method of their communication, arguably does little to assist in the application of the implied right of political communication to the issue of copyright expansion. Copyright law itself and its expansion cannot be said to directly influence the content of the information and ideas that are available to the public – there is no section in the law that openly discriminates. Rather, the impact of copyright on political communication occurs once copyrights are accumulated in a concentration within an oligopoly structure. Arguably, therefore, this impacts on the method of communication or the activity that produces the communication, with the restriction of the content of the communication being a secondary consequence.
With respect to proportionality, Brennan considered that the overall objective of the legislation was sufficient to warrant the intrusion to the right of political communication. The historical basis of copyright law sees its purpose as creating incentives for artists. Whilst there are significant arguments that this is no longer required to the degree that it once was, as well as suggestions that copyright law in its present state provides no real incentives for artists and only serves the needs of major corporations; it is difficult to imagine the High Court abandoning the basis of copyright altogether. Based on Brennan’s reasoning in this case, there must be a high level of disproportionality for a law to be considered invalid. Any argument would therefore need to be placed directly against the amending legislation which produced the changes to the Copyright Act 1968 (Cth) rather than against that Act in its entirety.
Brennan also considers the availability of other methods by which to communicate political messages. This may also be relevant to any case challenging copyright expansion if it were concerned only with political music as it may be argued that music is neither the best nor only method for political communication. However as noted in previous discussions regarding political music, lyrics are in fact, at law, literary works. Such an argument could then be refuted if one considered that all political expression is automatically subject to copyright law and therefore regardless of the means of communication, all political expression is impacted on by copyright expansion.
The case of Nationwide News concerned aspects of the Industrial Relations Act prohibiting speech which brought the Industrial Relations Commission or Commissioners into disrepute. The successful challenge to the legislation was based primarily on s51(xxxv) which was considered by the majority to be a ‘purposive’ power.
The Australian Capital Television case, in contrast, concerned the validity of aspects of the Broadcasting Act 1942 (Cth) which sought to regulate paid political advertisements during an election period. The legislation enacted based on ss10, 29, 31, 51(v), 51(xxxvi) and 51(xxxix). Of these sections, ss10, 29 and 31 could be said to form the central basis of the enactment with ss51(v), 51(xxxvi) and 51(xxxix) being used as supplementary powers. The grants of legislative powers primarily relied on in this case therefore were specifically concerned with the powers of the Commonwealth to regulate elections and in fact it was conceded that the Commonwealth had the power to make such laws.
Any case concerning copyright expansion would need, as a preliminary step at least, to consider the nature of the legislative grant of power contained in s51(xviii) of the Constitution. There have been two central cases concerning this grant of power both of which have essentially characterised the grant as being of a plenary nature.
In Nintendo Company Limited v Centronics Systems Pty Ltd [1994] HCA 27, a case concerning the operation of the Circuit Layouts Act 1989 (Cth), the majority stated with respect to s51(xviii):
[38]...The grant of Commonwealth legislative power which sustains the Act is that contained in s51(xviii)of the Constitution with respect to ‘Copyrights, patents of inventions and designs and trade marks ... It is of the essence of that grant of legislative power that it authorises the making of laws which create, confer, and provide for the enforcement of, intellectual property rights in original compositions, inventions, designs, trade marks, and other products of intellectual effort.
These comments were referred to and further observations made in this regard in the case of Grain Pool of WA v Commonwealth [2000] HCA 14 which concerned a challenge to the validity of the Plant Variety Act 1987 (Cth) and the Plant Breeder’s Rights Act 1994 (Cth). Here the majority discussed the process to be undertaken in determining the Constitutional basis of the legislation:
[11]...The general principles which are to be applied to determine whether a law is with respect to a head of legislative power such as s51(xviii) are well settled. They include the following. First, the constitutional text is to be construed “with all the generality which the words used admit”. Here the words used are “patents of inventions”. This, by 1900, was “a recognised category of legislation (as taxation, bankruptcy)’, and when the validity of such legislation is in question the task is to consider whether it “answers the description, and to disregard purpose or object”. Secondly, the character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates. Thirdly, the practical as well as the legal operation of the law must be examined to determine if there is a sufficient connection between the law and the head of power. Fourthly, as Mason and Deane JJ explained in Re F; Ex parte F:
In a case where the law fairly answers the description of being a law with respect to two subject-matters, one of which is and the other of which is not a subject-matter appearing in s51, it will be valid notwithstanding that there is no independent connection between the two subject-matter.
Finally, if a sufficient connection with the head of power does exist, the justice and wisdom of the law, and the degree to which the means it adopts are necessary or desirable, are matter of legislative choice.
In this case the majority held that, over time, the nature of what was to be considered within the scope of patent law could change and new interpretations applied to the grant of legislative power. Indeed the grant of legislative power was considered to be wider than the equivalent provision in the United States Constitution. Indeed Kirby J characterised the grant as being a very broad one.
From this initial perspective it appears very difficult to challenge the amendments made to the Copyright Act 1968 (Cth) which have resulted in the expansion of the law in this area – including term extension and digital rights management. It seems nearly impossible to argue that these changes were not within the description of the legislative grant of power.
I would argue, however, that this is not the end of the matter. In both Nationwide News and Australian Capital Television, one point was reiterated over and over again. That is, all grants of legislative power within the Constitution, are subject to the Constitution itself. Therefore, it may still be possible to argue that copyright expansion significantly detracts from the ability of the citizens to engage in political communication between themselves. The implied right to political communication, as derived from ss7 and 24 of the Constitution, surpasses considerations of the power of the Commonwealth to enact such laws. Indeed in such a case, as was done in the Australian Capital Television case, it would most likely be prudent to concede that the laws are enacted legitimately. But such a concession would not detract from an argument that the laws were invalid for unjustifiably impeding political communication. As will be touched on in future posts, in this field, as with so many today, there may also be support for the enactment of laws from the external affairs power – s51(xxix) of the Constitution. As an extreme but illustrative example, if the Commonwealth were to enter into an International Treaty banning political speech, one could similarly argue that the external affairs power was subject to the Constitution itself and the law could be held invalid on the basis of the implied right, despite there being a sufficiently grounded head of legislative power on which to enact the law.
In seeking to expand this argument more specifically to copyright law it is necessary to consider the case of Levy v Victoria [1997] HCA 31. This case provides precedent for the recognition of political expression, not merely political speech, as being within the ambit of the implied right and will be the next case considered in this series.
It’s safe to summarise at this stage that any Constitutional challenge to copyright expansion would not be an easy task. Such a claim would be heavily dependent on evidence and the ability to illustrate the ineffectiveness of fair dealing (most likely on the basis that it is very narrow and difficult to rely on in practice). Nonetheless, it is my contention that it would not be completely impossible.
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