Copyright protects property. Media practitioners encounter copyright every day either by using other people’s published work or when others want to publish their works. It is an area of law subject to rapid change. Constant improvements in technology and the growing impact of international legislation have left the law of the land struggling to keep up. This essay will discuss the impact of intellectual property laws, the level of creativity required to qualify for copyright, and the impact to journalists using copyright material. The essay will conclude with a brief discussion of amendments to Australian copyright law in 2000.
Copyright is a form of personal property. Intellectual property (IP) is an important subset of copyright. It describes a range of legal rights in relation to information that results from some form of human intellectual activity. Australia is a founder member of the world IP governing body, the World Intellectual Property Organisation (WIPO) established by the Stockholm Convention of 1967. The democratic nature of WIPO meant that the US with its one vote could always expect to be defeated on any reform move by developing countries. This frustrated large US companies keen to protect their IP portfolios from piracy. They created a lobby group called the Advisory Committee for Trade Negotiations (ACTN) to provide input into US trade policy. The US succeeded in putting IP on the agenda of the GATT Uruguay Round in 1994. The resulting agreement is called the trade-related aspects of intellectual property rights (TRIPS). TRIPS is now is a global enforcement of IP rights that includes software algorithms, genetic information and chemical compounds.
In Australia, copyright law is embodied at a federal level in the Copyright Act 1968 (Pearson 2004, p.282). The law does not address what degree of creativity is required for a work to gain copyright as an original. That question was considered by the US Supreme Court in Feist Publications Inc v Rural Telephone Service (1991). The landmark ruling of Feist was that in addition to being of independent origin, a work must be sufficiently creative to merit copyright. A telephone directory failed the second test. Databases may also fail this originality criterion and may lack copyright protection.
This test impacts journalists whose work may be stored in electronic databases and online newspapers. Journalists have long relied on the freedom of ideas to do their work. In De Garis v Neville Jeffress Pidler, the court ruled that employed journalists retain the right to distribute photocopies their articles not newspaper proprietors. Proprietors retain the right to reproduce articles in other media such as electronic databases or the internet. The 1993 Report on Journalists’ Copyright recommended the abolition of the special rule applying to print journalists. Reporters should seek the permission of copyright holders when reporting or else work within the defence of fair dealing. But The Panel case (2000) held that fair dealing defence failed if the object is sheer entertainment value rather than reporting of news for criticism or review.
There were two important amendments to Australian copyright law in 2000. The Copyright Amendment Act (Digital Agenda) was introduced to address copyright law deficiencies related to the internet. The main thrust of the law is to provide a right of communication to the public that is not limited to specific technologies (ibid, p.2). In the same year, the Copyright Amendment (Moral Rights) Act also provided two new “moral rights” for individual creators. The Australian Copyright Council defined moral rights in copyright law to mean right’s relating to a creator’s reputations in connection with his or her work. The two new rights are the right of attribution of authorship and the right of integrity of authorship. Creators can take legal action if they are not attributed or their work is falsely attributed or treated in a derogatory way. Unlike economic rights, moral rights are not transferable and last only for the lifetime of the creator.