The Public Domain: Enclosing the Commons of the Mind

I have been catching up on more reading this week - James Boyle's 'The Public Domain: Enclosing the Commons of the Mind' has been sitting in my reading tray for about 3 years and I was delighted to have an opportunity this week to take a look at it.

The central point of the book is that 'the line between intellectual property and the public domain is important in every aspect of culture, science and technology.' [pg xvi] Boyle begins by discussing the inherent aspects of intellectual property - that it is nonrival and nonexcludable and notes that financial reward is just one of the motivations behind creation - others are fame, altruism or because of another inherent creative force. [pg 3] Without limiting intellectual property rights, it becomes a system of corporate welfare. [pg 8] He writes:

'...the goal of the system ought to be to give the monopoly only for as long as necessary to provide incentive. After that, we should let the work fall into the public domain where all of us can use it, transform it, adapt it, build on it, republish it as we wish. For most works, the owners expect to make all the money the are going to recoup from the work with five or ten years of exclusive rights' [pg 11]

He discusses changes to copyright in recent years including automatic protection and term extension and notes that these have changed the contours of copyright regulation in a bad way. [pg 15].

Boyle terms the phrase 'The Jefferson Warning' to refer to the discussion of intellectual property at the time of its inception and the reluctance of the forefathers in granting monopoly rights. In essence intellectual property was not seen as a natural right rather a mechanism to create incentives, there is no entitlement as such to monopoly rights rather they are created by the State as a means to an end, they should not be permanent but rather only last as long as is needed to provide the incentive they set out to achieve, there are inherent dangers associated with intellectual property rights as they may cause more problems than they solve and the State must be careful to only award them when they are really needed. [pg 21-22] These sentiments were echoed by Thomas Babington Macaulay in his speech to the House of Commons in 1841:

'I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad.' [pg 22]

Reiterated by Boyle later in the text, he rephrases this to say that the concerns of the forefathers were that intellectual property creates artificial scarcity, high prices and low quality. [pg 37]

Boyle goes on to define the public domain and the commons:

'The public domain is material that is not covered by intellectual property rights. Material might be in the public domain because it was never capable of being owned. Examples would be the English language or the formulae of Newtonian physics. Alternatively, something might be in the public domain because rights have expired. The works of Shakespeare or the patents over powered flight are examples.
Some definitions of the public domain are more granular. They focus not only on complete works but on the reserved spaces of freedom inside intellectual property. The public domain would include the privilege to excerpt short quotations in a review. This vision is messier, but more instructive....' [pg 38]

'The term "commons" is generally used to denote a resource over which some group has access and use rights - albeit perhaps under certain conditions. It is used in even more ways that the term "public domain". The first axis along which definitions of the term "commons" vary is the size of the group that has access rights. Some would say it is a commons only if the whole society has access. That is the view I will take here.
The other difference between public domain and commons is the extent of restrictions on use. Material in the public domain is free of property rights. You may do with it what you wish. A commons can be restrictive. For example, some open source software makes your freedom to modify the software contingent on the conditions that your contributions, too, will be freely open to others.' [pg 39]

Boyle sees the public domain as important because it is the basis of art, science and self understanding. It is the raw material from which new things are made. [pg 39] He states that the more commodified and restricted our access to information, the less the market operates efficiently and more poorly it allocates resources in society. Creativity is undermined as the cost of the inputs rise. [pg 40]

Boyle then goes on to discuss the enclosure of land commons in England before referring to the increase in intellectual property rights as the second enclosure. [pg 43 -45] Here Hardin's tragedy of the commons does not apply as works are non rivalrous and nonexcludable. [pg 48] Indeed the increase in property rights creates a different problem:

'Using a nice inversion of the idea of the tragedy of the commons, Heller and Eisenberg referred to these effects - the transaction costs caused by myriad property rights over the necessary components of some subsequent innovation - as the tragedy of the anti commons'.

Boyle then goes on to term the phrase 'The Internet Threat' to refer to the digital environment and perceptions that technological changes empowering copying must mean an increase in property rights. [pg 53] In particular he refers to Napster and the changes that were brought about by file sharing. [pg 53] The logic of perfect control is discussed in detail in Chapter 4. [pg 61] The background to the Napster and Grokster litigation is also discussed. [see pg 71 - 79]

Chapter 6 discusses mashups in detail. In an earlier post here I embedded the YouTube clip to The Legendary KO's song 'George Bush Doesnt Care About Black People'. This is a fascinating chapter which traces the origins of that mashup and discusses the copyright implications for its reuse over time - this is a great example for anyone interested in the origins of mashups and the law around them. [pg 122] In discussing changes that need to be made to the law to allow for mashups Boyle states that one solution is to extend the system of compulsory licenses for cover versions to samples, or in the alternative, to exempt samples shorter than 5 seconds from copyright liability and clarify fair use. [pg 158-159]

Chapter 7 concerns the science commons with particular examples of software patents and synthetic biology. [pg 160]

Chapter 8 focuses on the creative commons and looks at flickr, ccmixter and creative commons [pg 179-181]. Boyle states that losses of sharing are every bit as real as losses from unauthorised copying. [pg 182] Further discussion on this topic looks to the free software movement and how creation of software takes place on a large scale despite a lower level of intellectual property rights. [pg 185]

In Boyle's eyes copyright maximalism was believed and pursued even when it did not make economic sense. [pg 198] It was a creation of a world view not a calculation of profit and loss:

'Not only did many of the rules we ended up with make no sense from the point of view of some of the largest economic players in the area - think of the device manufacturers, the search engines, and so on - they frequently made no sense from the perspective of those proposing them. Attempting to twist the law to make it illegal for technology to interfere with your business model is frequently bad for the industry seeking the protection, as well as for the technology, the markets, and the wider society.' [pg 199]

It was however a sincere belief that more rights would lead to more innovation. [pg 199]

Boyle is particularly critical of the lack of empirical evidence used to support changes in the law with a look at the legal protection for databases in the USA compared to Europe as one example. [pg 205 - 220]

Finally, Boyle proposes a movement along the lines of the environmental movement to lobby for changes to intellectual property law. [pg 230]

An excellent summary of the main points of the book is given on pages 205 & 236.

This is a brilliant book and very easy to read I really do recommend taking the time to look at it.

Further Reading
James Boyle, 'The Public Domain: Enclosing the Commons of the Mind' (2008) available for free at: < http://www.thepublicdomain.org/download/> at 13 September 2011

Four Great Women and a Manicure

I was watching The Simpsons tonight and caught this great reference to the Disney Corporation and copyright law - I cant actually see the link below in this region but those on the other side of the world may be more fortunate:

Season 20 / Episode 20: - Four Great Women and a Manicure

Lisa Simpson: I know another story about a great woman. It's called Snow White and the Seven
Lawyer: [interrupts Lisa] Excuse me, but the story you are about to tell is a copyright property of the Walt Disney Company.
Lisa Simpson: What? Snow White is a fairy tale that has been around for hundreds of years. Nobody owns the rights to it.
Lawyer: Does your story have any dwarves in it?
Lisa Simpson: Yes, but they are my own original creation. Their names are Crabby, Drunky, Hungry, Greedy, Lenny, Kerney, and Doc-tor Hibbert.

The Disney lawyer has very long evil finger nails! The scenes that follow are just as funny with an adaptation of the Snow White song available on hulu here. I purchased the episode from iTunes.

More Information
ShareTV.org, Lisa Simpson - The Simpsons Character Guide <http://sharetv.org/shows/the_simpsons/cast/lisa_simpson/quotes> at 6 July 2010

Wikipedia, Four Great Women and a Manicure (last updated 19 June 2010) <http://en.wikipedia.org/wiki/Four_Great_Women_and_a_Manicure> at 6 July 2010

The Evolution of Culture: Is Political Music Still Being Heard?

Updated: Here is the draft of a presentation I will be giving in the coming weeks. I discuss the nature of political music, the institutional developments and constraints on its production and reception and some strategies that could be employed to maximise its potential for social change.

Keep in mind that this is a work in progress.

Power point presentation with audio – warning large file
(this file has been updated)

Power point presentation without audio (see notes view)

Bibliography (word document)

(Select download with File Factory Basic).

Prince/Radiohead and YouTube

I have been reading with interest the recent tug of war and apparent misuse of the US Copyright Act by Prince with respect to his live performance of the Radiohead song Creep. Prince played this song at a concert and an audience member filmed part of the performance and posted it to YouTube. Prince’s label then used the DMCA to have the clip removed but Radiohead, the copyright owners of the song, sought for the clip to be reinstated:

Radiohead's Thom Yorke has reportedly objected to the takedown in a recent interview: "Well, tell him to unblock it. It's our ... song."

Commentators have suggested that Prince’s actions were unlawful because while anti-bootlegging law may have been applicable, the DMCA take down procedure used to have the clip removed was not available as a remedy.

This raises an interesting distinction between Australian and US copyright law as recent amendments in this country would now allow an artist in a similar position as Prince to take action under Part XIA of the Copyright Act 1968 (Cth) with respect to the performance itself.

In Australia protection for performances was introduced in 2007. Among other rights, section 248G establishes the rights of an artist to control the direct and indirect recording of performances, the copying of performances, as well as communicating them to the public.

Section 248PA provides both an indictable and summary offence for the direct recording of a performance without the authority of the performer during the period of protection which is 20 years for a cinematograph work or 50 years for a sound recording, taken from the date the performance was first given.

A person found guilty of an indictable offence could be liable for up to 550 penalty units ($60,500) or five years imprisonment. A corporation found guilty of the same offence is potentially liable for five times this amount. The equivalent summary offence is punishable by 120 penalty units ($13,200) or 2 years imprisonment.

These rights are in addition to moral rights provided to performers in Part IX of the Copyright Act which relate to attribution, false attribution and integrity.

In a scenario such as this an injunction would be available to prevent a clip being communicated to the public against the wishes of the performer, the take down procedures relating to hosts of internet content would also be applicable. Whilst section 248G provides that the provisions relate to performances in Australia, section 248U and 248V see the protection also being offered to international artists when performances take place in Australia.

The division (XIA) of the Australian Copyright Act dealing with the protection of performances became effective when the Australian Government acceded to the WPPT – WIPO Performances and Phonograms Treaty. While the laws had been drafted and placed in the Australian Copyright Act for quite some time they did not become effective until 26 July 2007.

Article 6 of the WPPT requires member countries to protect the economic rights of performers by enabling them to enjoy the exclusive right of authorizing the broadcasting and communication of their performances to the public and the fixation of these performances.

Article 7 provides that performers shall have the exclusive right of reproducing their performances and Article 8 provides for the exclusive right to distribute the original and copies of performances. Moral rights are also afforded under the treaty under Article 5.

It is interesting to place this treaty in a discussion of the purpose of copyright law - namely the need to establish an environment which provides incentives for artists to create. Clearly in this instance the uploading of the Radiohead song was a non commercial use and arguably the clip would have produced greater interest in Prince’s live performances. Therefore suggestions that this clip breached Prince’s economic rights are difficult to sustain.

One report suggests that Prince was filming the live performance himself. Taking this into account it could be argued that seeking to have the clip removed from YouTube was a reasonable request, however, it is unlikely that a short clip such as this would have had a major impact on the sale of any forthcoming DVD.

This situation also serves to illustrate the complexity and expansion of intellectual property law.

Performer’s rights in general have been criticized as being both unnecessary and ineffective. Undoubtedly there were other singers, musicians and dancers performing this song with him. All of these artists would have had to contract away their rights in order to work with Prince.

Furthermore this situation demonstrates the difficulty in complying with the rights of composers, recording artists and performers when each is a different person. Luckily in the USA there are no moral rights – in Australia the situation would be even more complex than this.

Prince’s actions have created poor publicity for him and potentially damaged the goodwill he has developed with his fans. These types of events however do help bands such as Radiohead and others in the open content field by highlighting the potential to abuse DMCA takedown notices.

The general public are learning time and again of the potential for copyright law to impact on free speech. It's all a little bit creepy :-)

Further Reading
TechDirt, Even Lawyers Are Confused About What's Legal Or Not In The Prince/Radiohead Spat (12 June 2008) <http://www.techdirt.com/articles/20080610/1651401368.shtml> at 13 June 2008

TechDirt, Prince And Radiohead Fight Over YouTube Song (30 May 2008) <http://www.techdirt.com/articles/20080530/1507241271.shtml> at 4 June 2008

EFF Deeplinks, Prince Issues One Takedown Too Many (2 June 2008) <http://www.eff.org/deeplinks/2008/06/prince-issues-one-takedown-too-many> at 7 June 2008

ZeroPaid, Prince Removes Radiohead 'Creep' Cover From YouTube (31 May 2008) <http://www.zeropaid.com/news/9524/Prince+Removes+Radiohead+%27Creep%27+Cover+from+YouTube> at 5 June 2008

TechDirt, Is Watching An Infringing YouTube Video Copyright Infringement? (16 May 2008) <http://www.techdirt.com/articles/20080514/1736121116.shtml> at 21 May 208

Billboard, Radiohead To Prince: Unblock 'Creep' YouTube Vids (30 May 2008) <http://www.billboard.com/bbcom/news/article_display.jsp?vnu_content_id=1003809963> at 13 June 2008

William van Caenegem, Intellectual Property (2nd ed.) 83- 84

WIPO, WIPO Performances and Phonograms Treaty (WPPT) (20 December 1996) <http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html> at 15 June 2008

Attorney Generals Department, Australia to Join Internet Copyright Treaties (26 April 2007) http://www.ag.gov.au/agd/WWW/MinisterRuddockHome.nsf/AllDocs/E8AC29AB4FF5A19FCA2572C9000F9A17?OpenDocument> at 10 May 2007

Australian Copyright Council, Government announces accession to WIPO Internet treaties (8 May 2007) <http://www.copyright.org.au/news/newsbytopic/u27462> at 10 May 2007

FreedomtoDiffer, Australia to Join Internet Copyright Treaties (26 April 2007) <http://www.freedomtodiffer.com/freedom_to_differ/2007/04/australia_to_jo.html> at 30 April 2007

Museums, The Public Domain and Profits

Further to my recent post on the public domain in which I highlighted the decision of the Power House Museum in Sydney to release the Tyrrell photographs in digital form through Flickr: The Commons, earlier today I read this very interesting article by Michael Geist in the Ottawa Citizen, titled ‘National Gallery looking for profits in all the wrong places’.

Most interestingly he notes:

[T]he McCord Museum of Canadian History in Montreal has poured significant resources into digitization, amassing more than 135,000 digital images that are freely accessible online. Similarly, the Canadian Museum of Civilization (which includes that museum and the Canadian War Museum) attracted a record 1.8 million visitors in 2006, but more impressively hit 66 million page views for its web-based content.

He goes on to discuss how museums are seeking to engage citizens in the digital environment through the use of things such as virtual museums, social networking and blogs. However it seems that not all uses of public domain works by museums are being offered on a non-profit basis. Geist refers to The National Gallery of Canada which is reported to have charged for the reproduction of some 250 public domain works in 2006:

The Access to Information Act records covered requests to the NGC for copies of public domain artworks between February 2006 and January 2007. The NGC received approximately 250 such requests, for which it imposed contractual restrictions on use of the images and levied an average fee of $379. While requesters were not advised of the cost breakdown, internal documents reveal that some of the price went to an administrative fee (typically $20) and a photographic fee.

Disturbingly, not only did the Gallery attach license conditions limiting the use of the reproductions but the costs levied included a permission charge higher than for works subject to copyright. This was justified on the grounds that as the works were not subject to copyright and no royalties would have to be paid, an increase in the cost levied by the gallery would be reasonable.

This comes in the same week as a story about the Metropolitan Museum of Art in New York City. Here the public were prevented from taking photographs of a Nicholas Poussin exhibition, who died in 1655. Usually the museum allows photographs provided no flash is used. When questioned about the restrictions in place for this exhibition, representatives of the museum suggested initially that this was due to copyright. Of course this is incorrect because the works are clearly within the public domain. Excess Copyright reports that the works were loaned to the museum and the restriction may have been a contractual condition imposed on their display.

These examples illustrate the use of contract law in a way which impedes access to public domain works. In establishing the copyright bargain, the United States Constitution specifically states that the copyright term shall be for a limited time. In doing so the law reflects the desire to limit the monopoly power conferred to copyright holders and to provide for full access to works on the expiration of the copyright term. Without a robust and diverse public domain, future creativity, free speech and democracy are undermined.

It is increasingly apparent that steps need to be taken to ensure that private interests cannot deprive the public of their rightful access to these works. Simply put there needs to be greater awareness of how these works are being dealt with, the ability to challenge any limitations which are imposed on the public's right to access the works, and greater education as to the vital importance to society of the public domain.

In short, it defies logic that private owners should continue to own and control works that are within the public domain.

Articles

Ottawa Citizen, National Gallery looking for profits in all the wrong places (15 April 2008) <http://www.canada.com/ottawacitizen/news/bustech/story.html?id=eea40d92-2682-458f-81ab-4926a2ae1283> at 17 April 2008

The McCord Museum of Canadian History in Montreal <http://www.mccord-museum.qc.ca/en/> at 17 April 2008

The Canadian Museum of Civilization <http://www.civilization.ca/visit/indexe.aspx> at 17 April 2008

The National Gallery of Canada <http://www.gallery.ca/> at 17 April 2008

TechDirt, Since When Has Copyright Become Life Plus 343 Years? (14 April 2008)<http://www.techdirt.com/articles/20080402/013157727.shtml> at 17 April 2008

Excess Copyright, Life + 343 years (1 April 2008) <http://excesscopyright.blogspot.com/2008/04/life-343-years.html> at 17 April 2008

The Metropolitan Museum of Art in New York City <http://www.metmuseum.org/> at 17 April
Lawrence Lessig, Free Culture (2004) <http://www.amazon.com/Free-Culture-Technology-Control-Creativity/dp/1594200068/ref=pd_bbs_sr_3?ie=UTF8&s=books&qid=1208401055&sr=8-3> at 17 April 2008

Australian Capital Television Pty Ltd and New South Wales v Commonwealth - PART 2

The judgements in this case provide an illustration of the application of the implied right to political communication however this case is just an example and by no means a definitive statement on the law in this area. As Brennan notes, while comments in this case can be useful in discussing the arguments for and against the availability of the implied right, the test will be different in each case. Here I will briefly outline some of the comments that may assist in applying the implied right to political communication to the issue of copyright expansion. I will then look at the comments which undermine such an application. In each of these instances I seek to merely highlight where there may be parallels and acknowledge that in doing so that there are varying degrees of merit. Finally, I will consider some of the unique aspects of s51(xviii) of the Constitution and how these may affect the application of the implied right to political communication.

1. Comments that may assist in applying the implied right to political communication to copyright expansion.

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.

3. The unique aspects of s51(xviii) of the Constitution and how these may effect the application of the implied right to political communication.

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.

Australian Capital Television Pty Ltd and New South Wales v Commonwealth [1992] HCA 45 - PART 1

The next case to be considered with respect the implied right to political communication within the Australian Constitution is that of Australian Capital Television v Commonwealth. The decision in this case was given immediately following the case of Nationwide News Pty Ltd v Wills – on the same day in fact. This case concerned the regulation of political broadcasting and advertising during election periods. The enactment in question was Part IIID of the Broadcasting Act 1942 (Cth) which specifically contained ss 95B, 95C, 95D, 95E, 95Q and 95S which were designed to remove the ability for political candidates and parties to pay for advertising during election periods and put in place a system allocating free air time to candidates on a proportional basis.

The sections forming this part of the legislation were introduced via the Political Broadcasts and Political Disclosures Act 1991 (Cth), and were said to be supported by a combination of ss10, 29, 31, 51(v) 51(xxxvi) and 51(xxxix) of the Constitution. The challenge to the validity of the law was brought by both television broadcasters and the NSW Government. The grounds on which the law was challenged included: a breach of the implied right to political communication, a broad right of communication vested in the people of the nation, ss92, 106, and 107 of the Constitution as express provisions providing for the independence of the States as well as implied independence through the doctrine of federalism, and s51(xxxi) the acquisition of property on other than just terms. Each judgement focused on different combinations of these claims.

After summarising the judgements in this case, the following post shall again consider the position relating to the expansion of copyright law and whether any further assistance can be gained from the observations in this case regarding the implied right to political communication.

1. Judgements holding the legislation invalid on the basis of the implied right to political communication

Chief Justice Mason’s judgement in this case went into some detail as to the purpose of the legislation:

[17]...The Commonwealth’s response is that the evident and principal purpose of Pt 111D is to safeguard the integrity of the political system by reducing, if not eliminating, pressure on political parties and candidates to raise substantial sums of money in order to engage in political campaigning on television and radio, a pressure which renders them vulnerable to corruption and to undue influence by those who donate to political campaign funds. The high costs of broadcast advertising have the effect, so it is said, of exposing political parties and candidates for election to attempts by substantial donors to exert influence. The escalating costs of political campaigning, particularly the costs of advertising on the electronic media, thus increase the risk that corruption and undue influence may affect the integrity of the political process.

This was based partly on the Ministers second reading speech when introducing the legislation to the House of Representatives and as referred to in the Report of the Joint Standing Committee on Electoral matters, Who Pays the Piper Calls the Tune, Report No.4 of the Committee, June 1989. Mason further referred to the findings of this report in noting that of 19 countries examined only five – Australia, Canada, New Zealand, Germany and the United States – allowed for paid political advertising. The report of the Senate Select Committee also identified that paid advertising was permitted in Ireland and Switzerland. Paid political advertising was not permitted in the United Kingdom, France, Norway, Sweden, and the Netherlands; with prohibitions during an election period in Denmark, Austria, Israel and Japan. Further to this, free broadcasting time was found to be allocated for political messages in Canada, France, New Zealand, Denmark, Austria, Israel, Japan, Germany and the Netherlands.

Whilst the plaintiffs raised a number of grounds for objection, Mason dealt only with the issue of an implied right to political communication holding that this on its own was sufficient for the law to be declared invalid. In doing so, he made comments which assist in illustrating the origin, nature and application of the implied right.

In particular, he differentiated between assumptions and implications in Constitutional interpretation, stating that assumptions were external factors considered and applied to the text of the instrument whereas implications were a result of the natural reading of the document. He stated that one such assumption was against the provision of a broad and positive right of communication within the Constitution:

[33]...[I]t is difficult if not impossible, to establish a foundation for the implication of general guarantees of fundamental rights and freedoms. To make such an implication would run counter to the prevailing sentiment of the framers that there is no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens. That sentiment was one of the unexpressed assumptions on which the Constitution was drafted.

He then went on to state that an implied right to political communication could be easily established from ss7 and 24 of the Constitution as a fundamental basis to the effectiveness of a representative government. However Mason considered that this right was not absolute:

[45]...freedom of communication is not an absolute. The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public. Thus, to take an example, Parliament may regulate the conduct of persons with regard to elections so as to prevent intimidations and undue influence, even though that regulation may fetter what otherwise would be free communication...

[46] A distinction should perhaps be made between restrictions on communication which target ideas or information and those which restrict an activity or mode of communication by which ideas or information are transmitted....

[47]...[R]estrictions imposed on an activity or mode of communication by which ideas or information are transmitted are more susceptible to justification. The regulation of radio and television broadcasting in the public interest generally involves some restrictions on the flow and dissemination of ideas and information. Whether those restrictions are justified calls for a balancing of the public interest in free communication against the competing public interest which the restriction is designed to serve, and for a determination whether the restriction is reasonably necessary... If the restriction imposes a burden on free communication that is disproportionate to the attainment of the competing public interest, then the existence of the disproportionate burden indicates that the purpose and effect of the restriction is in fact to impair freedom of communication.

Mason held that whilst largely directed to restricting a mode of communication, the law in this case did affect a restriction on ideas and information regarding elections and as such he considered there to be a greater need to ensure freedom of communication. He accepted the basis on which the legislation had been introduced and considered that some restrictions may be justified to prevent corruption of the political process. However he also noted aspects of the operation of the scheme, particularly that the method by which free broadcast time was allocated discriminated against new candidates as opposed to those already within the Parliament and that interest groups were effectively silenced from broadcasting during election campaigns. He was also concerned that the method of allocating free air time was to be established by the Executive through regulations, potentially creating uncertainty and the opportunity for an abuse of power. He concluded ultimately that Part IIID of the legislation should be struck down in its entirety.

The joint judgement of Deane and Toohey JJ also held the law to be invalid on the basis of an unjustifiable interference with the implied right to political communication. In doing so they provided further observations as to the nature and application of this implied right:

[4]...It is an implication of freedom under the law of an ordered and democratic society. In determining whether a purported law conflicts with the implication, regard must be had to the character of the impugned law. In particular, a law whose character is that of a law with respect to the prohibition or restriction of communications about government or governmental instrumentalities or institutions (“political communications“) will be much more difficult to justify as consistent with the implications than will a law whose character is that of a law with respect to some other subject and whose effect on such communications is unrelated to their nature as political communications.

They go on to state some of the grounds on which an interference with the implied right may be justifiable:

[11]...interference with the freedom of political communication can be justified as being in the public interest for the reason that it is either conducive to the overall availability of the effective means of such communications or does not go beyond what is reasonably necessary for the preservation of an ordered and democratic society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity within such a society.

In this instance Deane and Toohey JJ held that the measures taken were not justified noting in particular that effectively silencing interest groups from political broadcasting in this way was not likely to achieve the objective of preventing the corruption of the political process by paid advertising.

Gaudron J made similar observations in striking down the legislation on the basis that it was not reasonably appropriate and adapted. Particular noteworthy comments include those with respect to the subject matter of the freedom of political discourse:

[28]...Obviously, the Constitution does not postulate a society that is free and democratic only at election time. Nor, but perhaps not so obviously, does it postulate a society that is free and democratic only with respect to matters which the Constitution entrusts to the Commonwealth.

With this in mind Gaudron considered that the implied freedom extended to powers held by the States to make laws. Gaudron went on to note that there was an association between freedom of speech at common law and freedom of political communication in Constitutional law:

[33]...Recourse to the general law reveals that freedom of speech (which, of course, is wider than freedom of political discourse) is not absolute, but may be regulated and, in certain circumstances, may be severely restricted. As the implied freedom is one that depends substantially on the general law, its limits are also marked out by the general law. Thus, in general terms, the laws which have developed to regulate speech, including the laws with respect to defamation, sedition, blasphemy, obscenity and offensive language, will indicate the kind of regulation that is consistent with the freedom of political discourse.

Gaudron concluded that Part IIID was invalid in its entirety with it being unnecessary to consider the issues relating to s92 of the Constitution or the acquisition of property on other than just terms.

McHugh J’s judgement also contained noteworthy observations, particularly those relating to what constitutes ‘representative government’, the availability of alternatives and the need to produce evidence to support aspects of these claims.

In considering the notion of ‘representative government’, McHugh concluded that it was best characterised as a process:

[21]...The process includes all those steps which are directed to the people electing their representative – nominating, campaigning, advertising, debating, criticising and voting. In respect of such steps, the people possess the right to participate, the right to associate and the right to communicate. That means that, subject to necessary exemptions, the people have a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting... Moreover, that right must extend to the use of all forms and methods of communication which are lawfully available for general use in the community. To fail to give effect to the rights of participation, association and communication identifiable in ss7 and 24 would be to sap and undermine the foundations of the Constitution.

In discussing the availability of alternatives in achieving the objectives of the legislation, McHugh J stated:

[36]...However, the potential for or even the existence of corruption and undue influence in the political process does not amount to compelling justification for the infringement of the constitutional rights of the electors brought about by Pt IIID. If the electoral process has been, or is likely to be, corrupted by the cost of television and radio advertising, means less drastic than the provisions of Pt IIID are available to eradicate the evil. Unconvincing is the claim that, subject to s95A and the free time and policy launch provisions of Pt IIID, a blanket ban on electronic political advertising is needed, or for that matter would be effective, to prevent wealthy contributors from corrupting the electoral process.

With respect to the requirement of providing evidence of the need for such a law, McHugh J held:

[39] Moreover, before legislation such as Pt IIID could be upheld on the “level playing field” theory, it would need to be demonstrated by acceptable evidence, and not merely asserted, that, by reason of their practical control of the electronic media, some individuals and groups so dominate public discussion and debate that it threatens the ability of the electors to make reasoned and informed choices in electing their parliamentary representatives. By itself, domination of the electronic media is not a constitutionally compelling justification for banning the broadcasting of political matter at federal elections any more than a major newspaper accepting advertisements from only one political party would justify banning the publication of political advertisements in that newspaper during the election period.

McHugh concluded as the majority of judges did in this case, holding the law to be invalid. He differed from the majority however, in accepting that the legislation was valid with respect to the Territories.

2. Judgements holding the implied right to political communication had not been unjustifiably interfered with

Brennan J differed from the findings of the other majority judges, determining that only s95D(3)&(4) were invalid. In particular his decision considered the proportionality of the impact of the law on political communication; from the outset declaring that this was a matter of degree which could not be determined as a general rule but which would be different in every case depending on the relevant legislative grant of power within the Constitution as well as the legislation alleged to be invalid.

In this instance he considered that the objective of the legislation, the prevention of corruption of the political process by paid advertisements, warranted the impact on political communication. He noted in particular that there were other methods of communication available other than television and radio advertising, that there was evidence to suggest that the use of short television commercials had a negative impact on accurately stating political issues, and that whilst there was an associated impact on charitable and other interest groups, that these organisation were not being prevented from holding opinions contrary to the other political parties nor did they have a personal right of access to broadcasting services. He stated that a system of representative government, as evidenced in other jurisdictions, could survive and flourish without paid advertising and for these reasons s95B was valid.

He considered the impact of the legislation on the States as a separate issue and held s95D invalid on the basis that it created an undue burden on the implied right of independence of the States. In contrast, he held s95B and s95C valid as they did not have the same impact of preventing discussion about State political issues but merely prevented their participation in Commonwealth elections.

In examining the legislation with respect to the provision of free air time – ss95H to 95R – he held that this did not amount to an ‘acquisition of property on unjust terms’ as provided for in s51(xxxi) of the Constitution. Here he considered that the nature of the rights being provided to the political participants did not amount to a proprietary right:

[29]...Part IIID creates no assignable rights. Under Div.3 of Pt IIID, broadcasters are statutorily bound to provide free broadcasting time to the political parties and other groups and persons to whom free time units are allocated. It is immaterial to the validity of Pt IIID that broadcasters are denied the right to broadcast what they wish during free time, for neither of these effects creates, extinguishes or transfers property. It is immaterial that Pt IIID reduces the value of a broadcaster’s license for the beneficiaries of the free time provisions acquire none of the rights or privileges conferred by a broadcaster’s license. The beneficiaries acquire a statutory right to have their election broadcasts transmitted free of charge. That is a right to the services of the broadcaster; it is not a proprietary right.

Despite the discriminatory impact of the free time provisions, Brennan considered this aspect of the law to be valid, stating that it was a matter for Parliamentary wisdom as to how the time was allocated.

Dawson J also concluded that the impact of the law on the implied right to political communication was justified. One particularly interesting aspect of this judgement is the observations made contrasting the Constitutional position between Australia and the United States:

[16]...Thus the Australian Constitution, unlike the Constitution of the United States, does little to confer upon individuals by way of positive rights those basic freedoms which exist in a free and democratic society. They exist, not because they are provided for, but in the absence of any curtailment of them. Freedom of speech, for example, which is guaranteed in the United States by the First Amendment to the Constitution, is a concept which finds no expression in our Constitution, not withstanding that it is as much the foundation of a free society here as it is there. The right of freedom of speech exists here because there is nothing to prevent its exercise and because governments recognize that if they attempt to limit it, save in accepted areas such as defamation or sedition, they must do so at their peril. Not only that, but courts recognize the importance of the basic immunities and require the clearest expression of intention before construing legislation in such a way as to interfere with them... The fact, however, remains that in this country the guarantee of fundamental freedoms does not lie in any constitutional mandate but in the capacity of a democratic society to preserve for itself its own shared values.

Dawson also noted that whilst in this case the court was only interested it the operation of the implied freedom within the electoral period, that there may well be scope to suggest that it continues between election periods. He concluded by holding that the prohibition against political advertising in an election period was justified with the availability of alternative means of political communication remaining a viable option.

Likewise, Dawson held the manner by which free broadcasting time was allocated, was valid, noting that other countries also have laws more favourable to existing parties and candidates and that the limitations placed on interest groups were necessary to prevent the redirection of campaign funds from political parties to these organisations who, if permitted, would simply be used as a vehicle to advertise in the place of candidates or political parties, undermining the effectiveness of the legislation.

Dawson did not find favour either in arguments based on s92 of the Constitution, holding that there was nothing in the legislation that used State boundaries as a barrier to political communication. Dawson also considered that there was no discriminatory effect of the law on the States as the law was formulated to have a general application and did not single out a State or the States as an entity specifically prevented from political communication.

Similarly Dawson did not support arguments based on the allocation of free air time or restriction of political advertising as an acquisition of property on other than just terms. In this regard, he considered that there was no proprietary right transferred to the political parties or candidates nor a legal entitlement to revenue from broadcasting.

Dawson therefore held the legislation to be valid in its entirety.

Nationwide News Pty Ltd v Wills [1992] HCA 46 – PART 2

Summary of Judgements

2. In support of an implied right to freedom of political communication

The first judgement in this case to consider the notion of an implied right to political communication was that of Brennan J. In characterising the operation of s299(1)(d)(ii), Brennan held that the paragraph was sufficiently connected to the main purpose of the grant of legislative power under s51(xxxv) of the Constitution. However he then noted that any express power within this instrument is subject to the operation of the instrument itself, from which implications may be drawn limiting a grant of legislative power. These implications are not, however, absolute, with boundaries to their application. With respect to human rights in general, Brennan stated:

[12] A court will interpret laws of the Parliament in the light of a presumption that the Parliament does not intend to abrogate human rights and fundamental freedoms... but the court cannot deny the validity of an exercise of a legislative power expressly granted merely on the ground that the law abrogates human rights and fundamental freedoms or trenches upon political rights which, in the court’s opinion, should be preserved. A function of that kind may be conferred on a court exercising a jurisdiction to review judicially laws enacted under a Constitution containing a Bill of Rights, but our Constitution does not contain a Bill of Rights.

Brennan went on to note that there could be no challenge to an act of legislative power based on the notions of ‘peace order and good governance’ as this would open the floodgates of legislative review. Nonetheless the Australian Constitution does contain implied rights which can apply when reading the instrument in the context of the whole of law.

In this case the focus was on freedom of political discussion. Brennan held that to sustain a representative democracy, the freedom to discuss political and economic maters is essential. Referring to the European Court of Human Rights in The Observer and the Guardian v United Kingdom (1991) 14 EHRR 153 at 178:

[18] ...[I]t would be a parody of democracy to confer on the people that power to choose their Parliament but to deny the freedom of public discussion from which the people drive their political judgements...

He went on:

[19] ...Once it is recognized that a representative democracy is prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains...

He stated that no right to political communication arises at common law, nor does an implied Constitutional right restrict the operation of the common law.

He then went on to formulate the nature of the implied right:

[21] ... A freedom of the kind postulated leaves open to debate the extent to which that freedom can be trenched upon in order to protect other interests which are protected in a legal system modelled on Westminster, for example, the interests of justice, personal reputation or the community’s sense of decency. The balancing of the protection of other interest against the freedom to discuss governments and political matters is, under our Constitution a matter for the Parliament to determine and the Courts to supervise. I would state the governing implication in these terms: the Constitution prohibits any legislative or executive infringement of the freedom to discuss governments and governmental institutions and political matters except to the extent necessary to protect other legitimate interests and, in any event, not to an extent which substantially impairs the capacity of, or opportunity for, the Australian people to form the political judgements required for the exercise of their constitutional functions.

He then went on to consider the limits of the implied right further:

[22]... In considering the extent to which the freedom of discussion can be curtailed in protection of another interest, the material factors include the practicability of protection by a less severe curtailment of the freedom and the extent to which the protection of the other interest itself enhances the ability of the Australian people to enjoy their democratic rights and privileges. The circumstances which may affect the extent to which the freedom can be curtailed include the exigencies of defence or national security and the contemporary risk to other interests which are in need of protection.

In concluding that in this instance the paragraph of the Industrial Relations Act went beyond what was necessary, Brennan stated that the role of the High Court in disputes such as this was to determine whether the balance struck by Parliament was within the range of legitimate legislative choice.

In seeking to apply to the reasoning of Brennan’s judgement to the expansion of copyright law, questions that arise include:

1. Do the copyright amendments protect legitimate interests?
2. Does the protection of those interests substantially impair the capacity of, or opportunity for, the Australian people to form political judgements for their Constitutional purposes?
3. Are there more practical ways of protecting the interests of copyright holders which impact to a lesser degree on the freedom of political communication?
4. To what extent does current copyright law enhance the ability of Australians to enjoy their democratic rights and privileges?
5. Is there a contemporary risk to the interests of copyright holders relevant in determining their need for protection?

Deane and Toohey JJ similarly held there to be an implied right to political communication. They failed to specifically conclude whether s299(1)(d)(ii) of the Industrial Relations Act was supported by s51(xxxv) or s51(xxxix) finding such an inclusions irrelevant given the operation and application of the implied right to political communication.

They held that there are there main doctrines of government which underlie the Constitution:

1. The doctrine proscribing a Federal system of government
2. The doctrine of the separation of powers
3. The doctrine of representative government

This later doctrine being the applicable one in these circumstances was see to encompass a notion of responsible government (or indeed this could be seen as a fourth doctrine underlying the Constitution). In discussing the nature and application of responsible government, Deane and Toohey JJ stated:

[18] The people of the Commonwealth would be unable to responsibly discharge and exercise the powers of government control which the Constitution reserves to them if each person was an island, unable to communicate with any other person. The actual discharge of the very function of voting in an election or referendum involves communication. An ability to vote intelligently can only exist if the identity of the candidates for election or the content of a proposed law submitted for the decision of the people at a referendum can be communicated to the voter. The ability to cast a fully informed vote in an election of the members of the Parliament depends on the ability to acquire information about the background, qualifications and policies of the candidates for election and about the countless number of other circumstances and considerations, both factual and theoretical, which are relevant to a consideration of what is in the interests of the nation as a whole or of particular localities, communities or individuals within it....The doctrine presupposes an ability of represented and representative to communication information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth as a whole, to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental powers and functions on their behalf.

According to Deane and Toohey JJ the implied freedom of political communication operates on two levels – between the people and their representatives, and between the people themselves. However the right extends only so far as to prohibit burdensome legislation and interference rather than as a positive right with a broad application. In this instance it was applied to strike down the legislation but their Honours also noted circumstances where exceptions may arise.

The first of these relates to examples where the overall availability of communication services necessarily restricts some instances of communication (Miller v TCN Channel Nine Pty Ltd [1986] HCA 60 - this case concerned the governments discretion to prohibit the establishment and maintenance of a station for transmission or receipt of wireless telegraphy messages); and the second, where restrictions on communication are upheld in order to protect legitimate interests such as allowing individuals to live peacefully and with dignity. They note in conclusion, that the nature of the particular legislative power or the express words used within the grant of legislative power in the Constitution will determine whether the implied right to political communication should be modified in other cases.

Deane and Toohey JJ indicate that in the course of providing the means for political communication, there may be instances where some derogation from the implied right may be justified. This raises an interesting point in the application of the law to the issue of copyright expansion. It has often been the claim that copyright law itself is designed to create incentives for creators by supporting an economic basis for their work. Some might seek to extrapolate this to an argument suggesting the restriction in access to political songs is justifiable in exchange for the wider range of communication that copyright supports. On the other hand, it may be suggested that as there is no positive right to freedom of communication in general in Australia, the inherent detraction in political content in songs and their effectiveness, that arises from the expansion of copyright law, can not be justified.

In a short judgement indicating support for the reasoning of McHugh J and Mason CJ; but accepting the validity of the paragraph of the legislation prior to determining its invalidity on the basis of the implied right to political communication, Gaudron J considered the purpose of the law to be an important factor:

[8] ...freedom to discuss matters pertaining to government institutions and agencies may be curtailed by a law under s51, but only if its purpose is not to impair freedom, but to secure some end within power in a manner which, having regard to the general law as it has developed in relation to the written and spoken word, is reasonably and appropriately adapted to that end.

Gaudron notes the decision of Australian Capital Television Ltd and Ord v The Commonwealth [1992] HCA 45 which was handed down by the High Court immediately after this decision (same day) and in which there was also majority support for the acceptance of an implied right to political communication. This will be the subject of future posts and further discussion.

When seeking to apply Gaudron J’s reasoning from this case to the issue of copyright expansion it appears difficult, firstly, to apply a purposive reasoning to a grant of legislative power that is essentially unfettered. In the event that a purpose could be established in another way, perhaps through evidence of copyrights historical nature, there becomes the secondary issue of whether such expansion could fairly be said to have the purpose of impairing freedom. One argument could of course suggest that merely stating the purpose as being one of providing incentives to create whilst actually producing a limitation to freedom could suggest the law is not reasonably appropriate and adapted. The converse argument would be that the purpose is clearly not to impair communication but to enhance it.

There are three further questions which I have identified which could also be raised in applying the implied right of political communication to the impact of copyright law expansion on political music.

The first is whether there is scope to separate different forms of expression. The fundamental point to consider is what actually makes up musical expression. Lyrics are protected at law as a literary work. With this in mind there are clear hurdles to overcome in the suggestion that music could be considered distinctly from other forms of expression. Whilst the impact on the availability of political music (at least to me) is apparent, it may be that in considering the whole of the operation of copyright law that there is a less obvious impact from copyright expansion. Given the chance I would argue against this but if it were to turn on a question of evidence this may be more problematic to establish. For example, term extension may be easier to establish in a quantifiable way than, say, the impact of DRM.

The second question appears more easy to resolve. In the example of copyright expansion, there is the additional complication of having private parties utilise the law to (arguably) inhibit the communication about public affairs. I would argue that this is an interesting difference between the facts of Nationwide News where the party seeking to prevent political communication was the Commonwealth. Nonetheless, the question arising in cases concerning legislative validity is the basis on which the law is made regardless of the party that exercises the authority that it confers.

The third and final issue that I seek to raise at this time is the question about whether the law that is sought to be struck down must expressly deny political communication or whether it is sufficient that this occurs by operation. In Nationwide News the paragraph under consideration expressly sought to prevent communication but in contrast, copyright expansion does this by its cumulative effect and without specific terms stating this objective.

In conclusion, it appears that there are some interesting arguments that could be made to challenge the validity of copyright expansion in Australia based on the reasoning of the judges in this case. But whilst some aspects of the decisions lend themselves to application to the copyright issues, others clearly detract from it. As the first decision to recognise the implied freedom of political communication, this was an important case. What should always be remembered is that the High Court, unlike other courts in the hierarchy, has the ability to modify and adapt the law. As will be seen in the cases that followed this, the law relating to the implied right to political communication has not been static and nor should it ever be considered to be in a final state.

Nationwide News Pty Ltd v Wills [1992] HCA 46 – PART 1

Summary of Judgements

This case concerned an article published by Nationwide News which, it was claimed, contravened s299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth). This section prescribed that it was an offence to make statements calculated to bring the Industrial Relations Commission or a member of the Commission into disrepute. The legal argument here considered the Constitutional basis of the legislation and whether the section was valid.

Whilst all judges ultimately concluded that this section was not validly enacted, the majority (for these purposes) based this determination on an implied right to political communication whilst the minority considered the matter based on other areas of the Constitution. In order to place the discussion as to how the implied right was established and its nature in the next post, this post will consider the grounds relied upon in the alternative judgements.

In keeping with the purpose of my research, I shall attempt to also consider whether these judgements could/could not be applied in an argument concerning the expansion of copyright law in Australia.

1. Other Judgements

Chief Justice Mason held that s299 (1)(d)(ii) of the Industrial Relations Act 1988 (Cth) did not come within the express grant of power contained in s51 (xxxv) of the Constitution as it concerned the protection of the reputation of members of the Industrial Relations Commission. He held this to be outside the main purpose or objective of the section which is to provide for the conciliation and arbitration of industrial disputes. Had the law come within the main purpose of the provision of the Constitution, Mason considered that it would have been valid regardless of its impact.

Mason then went on to consider s51(xxxix) which concerns matters incidental to the exercise of power under the Constitution. In doing so he looked to the reasonableness of the connection between the law and the subject matter of the power. He held that reasonableness was a question of degree when considering the purpose of the law and the means by which it was sought to be achieved. In making such an assessment Mason held that adverse or extraordinary consequences could be considered, and in this case, the intrusion into freedom of expression was one such consequence to be examined.

Mason referred in particular to the case of Davis v The Commonwealth [1988] HCA 63 which concerned an attempt to legislate to prohibit the use of terms such as ‘200 years, 1788, 1988, 88’ to protect the Australian Bicentennial Commission. As there were countless situations where these terms could be used for legitimate purposes without creating prejudice for the Bicentennial Commission, the High Court held the legislation to be invalid. As Mason notes:

[16] ...the intrusion into freedom of expression was so great as to preclude the conclusion that the means adopted were reasonably and appropriately adapted to achieve ends that lay within the reach of the Constitutional power.

In this instance Mason held that as the Industrial Relations Act provided greater protection than the law of defamation and the law relating to criticism of the judiciary (contempt of court), that it was therefore not reasonably necessary:

[24] In deciding an issue of proportionality in the context of the incidental scope of a substantive legislative power, the Court must take account of and scrutinize with great anxiety the adverse impact, if any, of the impugned law on such a fundamental freedom as freedom of expression, particularly when that impact impairs freedom of expression in relation to public affairs and freedom to criticize public institutions. Recognition of the paramount importance of freedom of expression and criticism of public institutions has strongly influenced the formulation of the principles of the law of contempt. It is inevitable that recognition of that importance must govern the Court’s present decision on whether s299 (1)(d)(ii) has a relevant connection with the subject-matter of the legislative power. [25] It follows, that in my opinion, such a connection is absent and that the provision is not supported by s51(xxxv) and s51(xxxix).

In seeking to apply this judgement to an argument as to whether aspects of the Copyright Act 1968 (Cth) such as those that deal with digital rights management, for example, are beyond the main purpose and are not incidental to s.51 (xviii) of the Constitution, a number of difficulties arise.

According to Mason’ s analysis, the first step would be to determine the main purpose of the Constitutional grant of power and examine whether these aspects of the legislation could be held to be within that grant. As he notes at [10] many of the Constitutional powers are not truly purposive powers and in some instances, as here, it would be very difficult to determine what is the main object or purpose of the grant. Indeed other cases concerning the expansion of intellectual property with respect to circuit layouts and plant breeder’s rights have determined that there are essentially no limitations on the Commonwealths powers in this area. Without a phrase such as that provided in the United States Constitution with respect to copyright law, which refers to the ‘promotion of science and the useful arts’ and which makes a direct reference to the notion of protection being for ‘a limited time’, it seems unlikely that the High Court of Australia could go on to refer to the reasonableness of consequences on an incidental basis. Mason suggests that where a law is seen to come within the main purpose of the Constitutional grant of power, it is valid regardless of its impact.

Dawson J, similarly, did not find need to refer to an implied right of political communication in determining this case. He differed from Mason’s reasoning insomuch as to suggest that quite apart from s.51(xxxix), that each grant of power within the Constitution contained powers incidental to its operation. In a fact he distinguished between a matter incidental to the subject matter of a grant of power, holding this could be considered within the section itself; and a matter incidental to the exercise of power which he held to come within s51(xxxix) and to apply beyond merely the legislature to the judiciary and executive. He therefore focused on s.51(xxxv) in determining that the legislative provision was wholly invalid for failing to be within the express or incidental aspects of that grant. He also made some interesting observations with respect to the notion of reasonable proportionality as employed by Mason:

When a power is not purposive (and most of the powers in s51 are not) the ultimate question is not whether the law is reasonably adapted to the achievement of a purpose, but whether it has a sufficient operation upon – a sufficient connection with – something forming part of the subject-matter of the power... For that reason, the concept of reasonable proportionality is of limited assistance where purposive powers are not involved and the danger in employing it is that it invites the Court to act upon its view of the desirability of the impugned legislation rather than upon the connection of the legislation with the subject-matter of the legislative power.

This view would further undermine any argument that aspects of the Copyright Act 1988 (Cth) are invalid for lack of desirability or associated impacts.

Similarly McHugh did not base his decision on an implied right to political communication but rather focused on matters incidental to s51(xxxv). In doing so he made further comments with respect to interpretation of matters within s51 of the Constitution:

[12] Whenever any question arises as to whether a power conferred by s51 of the Constitution should be given a wide or narrow meaning, the settled doctrine of this Court is that it should be given the wider meaning unless something in the rest of the Constitution indicates, expressly or by implication, that the narrow meaning best carries out the overall purpose of the Constitution. .. [13] A law purporting to be passed under one of the paragraphs of s51 is valid if it is a law ‘with respect to’ one of the subjects enumerated in those paragraphs. Whether or not it is such a law is to be determined ‘by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes’...

From this reasoning, it is again, difficult to see any clear Constitutional grounds on which the expansion of copyright law could be challenged. The argument that may arise, and which will be considered in detail in the next blog post, concerns the nature of the implied right to political communication and whether this implication lends itself to a more narrow reading of s51(xviii). Here one may find support for the suggestion that the expansion of copyright law alters the rights of the public, and limits the duties of copyright holders by increasing their powers, to such an extent that these amendments to the law should be struck down. From the outset this seems like a difficult argument to make. As noted already, the implied right to political communication is not an absolute right. There may also be additional support for copyright expansion from the external affairs power to be overcome in this rather difficult debate.