Levy v Victoria [1997] HCA 31 – PART 2

Rounding off the discussion (so far) on the implied right to political communication in Australia, I would like to take a little time to consider the test laid out in Lange v ABC and applied in Levy v Victoria and how this can or cannot be used to base a case against copyright expansion.

There are two parts to be considered:

First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

The important part of the test to focus on here is ‘operation or effect’. As noted in earlier posts there is nothing specific in the Copyright Act which prevents political communication – unlike the Nationwide News case, for example, where the legislation directly sought to prevent free speech. In the context of copyright expansion, any claim would have to be based on the idea that the operation or effect of the law was such that political communication is impeded. This would be a matter of evidence and I would suggest that it would need to be fairly convincing. Assuming this could be established, the next part of the test would need to be addressed.

Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s128 for submitting a proposed amendment of the Constitution to the informed consent of the people...

This part of the test is more difficult to decipher in this context. On the face of it one may well suggest that copyright law serves a legitimate purpose, but in fact evidence, particularly with respect to the music industry, may well be able to demonstrate that there are quite illegitimate ends being served at present. Firstly, there is a limit to what can be enacted into law and still be called ‘copyright’ and secondly what determines the legitimacy of the end must surely relate to the social, economic and technical environment in which the law is enacted.

The courts have taken a wide view of what constitutes political communication and there is general support that it need not take place with reference to an election or in an election period. On the one hand copyright law could be characterised as providing the incentives to create with the intention of educating the people in order to ensure they are capable of participating on a political level. On the other, one could lead evidence to suggest that there has been a significant lowering in need to provide incentives for the creation of this type of expression and therefore the law is not 'reasonably appropriate or adapted' in the circumstances.

If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.

With the right evidence, a case against copyright expansion could be framed. Its impossible to say with certainty what the outcome would be but I take some hope in the knowledge that it would not be completely impossible.