Copyright: Its History and Its Law

Performing right

14. Performing right in dramatic and musical works.—

(1.) The performing right in a dramatic or musical work means the exclusive right to perform it, or authorise its performance in public.

(2.) Performing right shall subsist in every dramatic or musical work, whether the author is a British subject or not, which has, after the commencement of this Act, been performed in public in Australia, before or simultaneously with its first performance in public elsewhere.

Lecturing right

15. Lecturing right in lectures.– (1.) The lecturing right in a lecture means the exclusive right to deliver it, or authorise its delivery, in public, and except as hereinafter provided, to report it.

(2.) Lecturing right shall subsist in every lecture, whether the author is a British subject or not, which has, after the commencement of this Act, been delivered in public in Australia, before or simultaneously with its first delivery in public elsewhere.

Commencement

16. Commencement of copyright, performing right, and lecturing right.– (1.) The copyright in a book shall begin with its first publication in Australia.

(2.) The performing right in a dramatic or musical work shall begin with its first performance in public in Australia.

(3.) The lecturing right in a lecture shall begin with its first delivery in public in Australia.

Term

17. Term of copyright, performing right, and lecturing right.– (1.) The copyright in a book, the performing right in a dramatic or musical work, and the lecturing right in a lecture, shall subsist for the term of forty-two years or for the author's life and seven years whichever shall last the longer.

(2.) Where the first publication of a book, the first performance in public of a musical or dramatic work, or the first delivery in public of a lecture takes place after the death of the author, the copyright, performing right, or lecturing right, as the case may be, shall subsist for the term of forty-two years.

(3.) Where a book or a dramatic or musical work is written by joint authors the copyright and the performing right shall subsist for the term of forty-two years or their joint lives and the life of the survivor of them, and seven years, whichever shall last the longer.

(4.) If a lecture is published as a book with the consent in writing of the owner of the lecturing right, the lecturing right shall cease.

Ownership

18. Ownership in copyright, performing right, and lecturing right.– (1.) The author of a book shall be the first owner of the copyright in the book.

(2.) The author of a dramatic work or musical work shall be the first owner of the performing right in the dramatic or musical work.

(3.) The author of a lecture shall be first owner of the lecturing right in the lecture.

Joint authors

19. Ownership in the case of joint authors.– Where there are joint authors of a book, or of a dramatic or musical work, or of a lecture, the copyright or the performing right, or the lecturing right, as the case may be, shall be the property of the authors.

Separate authors

20. Separate authors.– Where a book is written in distinct parts by separate authors and the name of each author is attached to the portion written by him, each author shall be entitled to copyright in the portion written by him in the same manner as if it were a separate book.

Encyclopædia and similar works

21. Encyclopædia and similar works.– The proprietor or projector of an encyclopædia or other similar permanent work of reference who employs some other person for valuable consideration in the composition of the whole or any part of the work shall be entitled to the copyright in the work in the same manner as if he were the author thereof.

Copyright in periodicals

22. Copyright in articles published in periodicals.– (1.) The author of any article, contributed for valuable consideration to and first published in a periodical, shall be entitled to copyright in the article as a separate work, but so that —

(a) he shall not be entitled to publish the article or authorise its publication until one year after the end of the year in which the article was first published and

(b) his right shall not exclude the right of the proprietor of the periodical under this section.

(2.) The proprietor of a periodical in which an article, which has been contributed for valuable consideration, is first published shall be entitled to copyright in the article, but so that —

(a) he shall not be entitled to publish the article or authorise its publication except in the periodical in its original form of publication, and

(b) his right shall not exclude the right of the author of the article, under this section.

Articles without valuable consideration

23. Copyright in articles published in periodicals without valuable consideration.– The author of any article contributed without valuable consideration to, and first published in, a periodical, shall be entitled to copyright in the article as a separate work.

Copyright, etc., personal property

24. Copyright, &c., to be personal property.– The copyright in a book, the performing right in a dramatic or musical work, and the lecturing right in a lecture shall be personal property, and shall be capable of assignment and of transmission by operation of law.

Copyright and other rights separate property

25. Copyright and other rights to be separate properties.– The copyright in a book, and the performing right in a dramatic or musical work and the lecturing right in a lecture shall be deemed to be distinct properties for the purposes of ownership, assignment, licence, transmission, and all other purposes.

Assignment

26. Assignment of copyright.– The owner of the copyright in a book, or of the performing right in a dramatic or musical work, or of the lecturing right in a lecture, may assign his right either wholly or partially and either generally or limited to any particular place or period, and may grant any interest therein by licence; but an assignment or grant shall not be valid unless it is in writing signed by the owner of the right in respect of which it is made or granted.

New editions

27. New editions.– Any second or subsequent edition of a book containing material or substantial alterations or additions shall be deemed to be a new book, but so as not to prejudice the right of any person to reproduce a former edition of the book or any part thereof after the expiration of the copyright in the former edition.

Provided that while the copyright in a book subsists no person, other than the owner of the copyright in the book or a person authorised by him, shall be entitled to publish a second or subsequent edition thereof.

Abridgements, etc., for private use

28. Making of abridgment, &c., for private use.– Copyright in a book shall not be infringed by a person making an abridgment or translation of the book for his private use (unless he uses it publicly or allows it to be used publicly by some other person), or by a person making fair extracts from or otherwise fairly dealing with the contents of the book for the purpose of a new work, or for the purposes of criticism, review, or refutation, or in the ordinary course of reporting scientific information.

Translations or abridgments

29. Translations or abridgments.– Where the author has parted with the copyright in his book and a translation or abridgment of the book is made with the consent of the owner of the copyright by some person other than the author, notice shall be given in the title-page of every copy of the translation or abridgment that it has been made by some person other than the author.

Failure of author to make translation

30. Failure of author to make or cause translation of book.– Where a translation of a book into a particular language is not made within ten years from the date of the publication of the book by the owner of the copyright or by some person by his authority —

(a) Any person desirous of translating the book into that language may make an application in writing to the Minister for permission so to do:

(b) The Minister may thereupon by notice in writing inform the owner of the copyright of such application and request him to make or cause to be made a translation of the book into that language within such time as the Minister deems reasonable or to show cause why such application should not be granted:

(c) If the owner of the copyright fails to comply with such notice the Minister may grant such application.

Copyright in translations

31. Copyright in translations.– Copyright shall subsist in a lawfully-produced translation or abridgment of a book in like manner as if it were an original work.

Reservation of performing right

32. Notice of reservation of performing right.– (1.) Where a dramatic or musical work is published as a book, and it is intended that the performing right is to be reserved, the owner of copyright, whether he has parted with the performing right or not, shall cause notice of the reservation of the performing right to be printed on the title-page or in a conspicuous part of every copy of the book.

(2.) Defendant's rights where no notice of reservation of performing right.– Where —

Defendant's rights where no notice

(a) proceedings are taken for the infringement of the performing right in a dramatic or musical work published as a book, and

(b) the defendant proves to the satisfaction of the Court that he has in his possession a copy of the book containing the dramatic or musical work and that that copy was published with the consent of the owner of the copyright, and does not contain the notice required by this Act of the reservation of the performing right,

judgment may be given in his favor either with or without costs as the Court, in its discretion, thinks fit; but in any such case the owner of the performing right (if he is not the owner of the copyright) shall be entitled to recover from the owner of the copyright damages in respect of the injury he has incurred by the neglect of the owner of the copyright to cause due notice to be given of the reservation of the performing right.

Report of lecture

33. Report of lecture in a newspaper.– (1.) Unless the reporting of a lecture is prohibited by a notice as in this section mentioned, the lecturing right in a lecture shall not be infringed by a report of the lecture in a newspaper.

(2.) The notice prohibiting the reporting of a lecture may be given —

(a) orally at the beginning of the lecture; or

(b) by a conspicuous written notice affixed, before the lecture is given, on the entrance doors of the building in which it is given or in a place in the room in which it is given.

(3.) When a series of lectures is intended to be given by the same lecturer on the same subject, one notice only need be given in respect of the whole series.

PART IV. – ARTISTIC COPYRIGHT

Artistic copyright

34. Meaning of copyright.– The copyright in an artistic work means the exclusive right of the owner of the copyright to reproduce or authorise another person to reproduce the artistic work, or any material part of it, in any manner, form, or size, in any material, or by any process, or for any purpose.

35. Copyright in artistic works.– Copyright shall subsist in every artistic work whether the author is a British subject or not, which is made in Australia after the commencement of this Act.

Commencement and term

36. Commencement and term of artistic copyright.– The copyright in an artistic work shall begin with the making of the work, and shall subsist for the term of forty-two years or for the author's life and seven years whichever shall last the longer.

Ownership

37. Ownership of copyright in artistic work.– The author of an artistic work shall be the first owner of the copyright in the work.

Portraits

38. Copyright in portraits.– When an artistic work, being a portrait, is made to order for valuable consideration, the person to whose order it is made shall be entitled to the copyright therein as if he were the author thereof.

Photographs

39. Copyright in photographs.– (1.) When a photograph is made to order for valuable consideration the person to whose order it is made shall be entitled to the copyright therein as if he were the author thereof.

(2). Subject to subsection (1) of this section, when a photograph is made by an employee on behalf of his employer the employer shall be deemed to be the author of the photograph.

Engravings and prints

40. Engravings and prints.– (1.) Subject to section thirty-four of this Act the engraver or other person who makes the plate or other instrument by which copies of an artistic work are multiplied shall be deemed to be the author of the copies produced by means of the plate or instrument.

(2.) When the plate or other instrument mentioned in this section is made by an employee on behalf of his employer the employer shall be deemed to be the author of the copies produced by means of the plate or instrument.

Sale of painting, etc.

41. Copyright in case of sale of painting, statue, or bust. (1.) – When the owner of the copyright in any artistic work being a painting, or a statue, bust, or other like work, disposes of such work for valuable consideration, but does not assign the copyright therein, the owner of the copyright (except as in this section mentioned) may in the absence of any agreement in writing to the contrary make a replica of such work.

Right to make replicas

Right of author to make replicas of statues, etc., in public places. (2.) – When a statue, bust, or other like work, whether made to order or not, is placed or is intended to be placed in a street or other like public place, the author may, in the absence of any agreement to the contrary, make replicas thereof.

Personal property

42. Artistic copyright is personal property.– The copyright in an artistic work shall be personal property, and shall be capable of assignment and of transmission by operation of law.

Copyright and ownership

43. Copyright and ownership in artistic works.– The copyright in an artistic work and the ownership of the artistic work shall be deemed to be distinct properties for the purposes of ownership, assignment, licence, transmission, and all other purposes.

Assignment

44. Assignment of copyright.– The owner of the copyright in an artistic work may assign his right wholly or partially and either generally or limited to any particular place or period and may grant any interest therein by licence; but an assignment or grant shall not be valid unless it is in writing signed by the owner of the copyright.

PART V. – INFRINGEMENT OF COPYRIGHT

Infringement

45. Infringement of rights under Act.– If any person infringes any right conferred by this Act in respect of the right in a book, the performing right in dramatic or musical work, the lecturing right in a lecture, or the copyright in an artistic work, the owner of the right infringed may maintain an action for damages or penalties or profits, and for an injunction, or for any of those remedies.

Damages under performing or lecturing right

46. Damages in case of performing right or lecturing right.– In assessing the damages in respect of the infringement of the performing right in a dramatic or musical work or the lecturing right in a lecture, regard shall be had to the amount of profit made by the infringer by reason of the infringement, and to the amount of actual damage incurred by the owner of the performing or lecturing right.

Objection to title

47. Notice of objection to title.– The plaintiff in any action for the infringement of a right conferred by this Act shall be presumed to be the owner of the right which he claims, unless the defendant in his pleadings in defence pleads that the defendant disputes the title of the plaintiff, and states the grounds on which the plea is founded, and the name of the person, if any, whom the defendant alleges to be the owner of the right.

Limitation of actions

48. Limitation of actions. (Cf. 5-6 Vict. c. 45, s. 26.) – No action for any infringement of copyright, performing right, or lecturing right under this Act shall be maintainable unless it is commenced within two years next after the infringement is committed.

Property in pirated works

49. Property in pirated books or artistic work.– All pirated books and all pirated artistic works shall be deemed to be the property of the owner of the copyright in the book or work and may, together with the plates, blocks, stone, matrix, negative, or thing, if any, from which they are printed or made, be recovered by him by action or other lawful method.

Penalties

50. Penalties for dealing with pirated books.– If any person —

(a) sells, or lets for hire, or exposes offers or keeps for sale or hire, any pirated book or any pirated artistic work; or

(b) distributes, or exhibits in public, any pirated book or any pirated artistic work; or

(c) imports into Australia any pirated book or any pirated artistic work,

he shall be guilty of an offence against this Act, and shall be liable to a penalty not exceeding Five pounds for each copy of such pirated book or pirated artistic work dealt with in contravention of this section, and also to forfeit to the owner of the copyright every such copy so dealt with, and also to forfeit the plates, blocks, stone, matrix, negative, or thing, if any, from which the pirated book or pirated artistic work was printed or made.

Provided that the whole penalties inflicted on any one offender in respect of the same transaction shall not exceed Fifty pounds.

Provided also that no person shall be convicted of an offence under this section if he proves to the satisfaction of the court at the hearing that he did not know, and could not with reasonable care have ascertained, that the book was a pirated book or the work was a pirated artistic work.

Liability as to theatre

51. Liability in respect of use of theatre.– Where a dramatic or musical work is performed in a theatre or other place in infringement of the performing right of the owner of that right, the proprietor tenant or occupier who permitted the theatre or place to be used for the performance shall be deemed to have infringed the performing right and shall be guilty of an offence against this Act, and shall be liable to a penalty not exceeding Five pounds for each such offence and the court may, in addition to the penalty, order the defendant to pay to the owner of the performing right in respect of each such infringement a sum by way of damages to the amount of Ten pounds, or to such amount as the court deems equal to the profits made by the performance of the work, whichever sum is greater.

Provided that no person shall be convicted of an offence under this section if he proves to the satisfaction of the court at the hearing that he did not know and could not with reasonable care have ascertained that the dramatic or musical work was performed in infringement of the performing right of the owner of that right.

Search warrant and seizure

52. Search warrant and seizure of pirated copies.– (1.) A justice of the peace may upon the application of the owner of the copyright in any book or in any artistic work or of the agent of such owner appointed in writing: —

(a) If satisfied by evidence that there is reasonable ground for believing that pirated books or pirated artistic works are being sold, or offered for sale – issue a warrant, in accordance with the form prescribed, authorising any constable to seize the pirated books or pirated artistic works and to bring them before a court of summary jurisdiction.

(b) If satisfied by evidence that there is reasonable ground for believing that pirated books or pirated artistic works are to be found in any house, shop, or other place – issue a warrant, in accordance with the form prescribed, authorising any constable to search between sunrise and sunset, the place where the pirated books are supposed to be, and to seize and bring them or any books or artistic works reasonably suspected to be pirated books or pirated artistic works before a court of summary jurisdiction.

(2.) A court of summary jurisdiction may, on proof that any books or artistic works brought before it in pursuance of this section are pirated books or pirated artistic works, order them to be destroyed or to be delivered up, subject to such conditions, if any, as the court thinks fit, to the owner of the copyright in the book or artistic work.

Delivery up of pirated works

53. Power of owner of copyright to require delivery to him of pirated books and works.—

(1.) The owner of the copyright in any book or artistic work, or the agent of such owner appointed in writing, may by notice, in accordance with the prescribed form, require any person to deliver up to him any pirated reproduction of the book or work, and every person to whom such notice has been given, and who has any pirated reproduction of the book or work in his possession or power, shall deliver up the pirated reproduction of the book or work in accordance with the notice.

Penalty: Ten Pounds.

(2.) A person shall not give any notice in accordance with this section without just cause.

Penalty: Twenty pounds.

(3.) In any prosecution under subsection (2) of this section the defendant shall be deemed to have given the notice without just cause unless he proves, to the satisfaction of the court at the hearing, that at the time of giving the notice he was the owner of the copyright in the book or artistic work or was the agent of such owner appointed in writing, and had reasonable ground to believe that the person to whom the notice was given had pirated reproductions of the book or work in his possession or power.

Power to forbid performance

54. —Power of owner of performing right to forbid performance in infringement of his right.– (1.) The owner of the performing right in a musical or dramatic work, or the agent of the owner appointed in writing, may, by notice in writing in accordance with the prescribed form, forbid the performance of the musical or dramatic work in infringement of his right, and require any person to refrain from performing or taking part in the performance of the musical or dramatic work, and every person to whom a notice has been given in accordance with this section shall refrain from performing or taking part in the performance of the musical or dramatic work specified in the notice in infringement of the performing right of such owner.

Penalty: Ten pounds.

(2.) A person shall not give any notice in pursuance of this section without just cause.

Penalty: Twenty pounds.

(3.) In any prosecution under subsection (2) of this section, the defendant shall be deemed to have given the notice without just cause unless he proves, to the satisfaction of the court at the hearing, that at the time of giving the notice he was the owner of the performing right in the musical or dramatic work, or the agent of the owner appointed in writing, and had reasonable ground to believe that the person to whom the notice was given was about to perform or take part in the performance of the musical or dramatic work in infringement of the performing right of the owner.

False representations

55. Penalty for false representations in notices.– Any person, who in any notice given in pursuance of this Act, makes a representation, which is false in fact and which he knows to be false or does not believe to be true, that he is

(a) the owner of the copyright in any book or artistic work, or

(b) the owner of the performing right in a musical or dramatic work, or

(c) the agent of any such owner,