Copyright: Its History and Its Law

shall be guilty of an offence against this Act.

Penalty: Two years' imprisonment.

Request to police

56. Request to police to seize 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, in accordance with the prescribed form, request that any pirated reproductions of the book or work be seized by the police, and may lodge the request at any police station.

(2.) Any police constable in the town or district in which the police station is situated (whether in the service of the Commonwealth or a State), may, at any time in the day time within seven days after the request was so lodged, seize all pirated reproductions of the book or work mentioned in the notice, and all reproductions of the book or work which he has reasonable ground to believe are pirated reproductions, found by him in the possession of any person other than the owner of the copyright in the book or work.

(3.) Every police constable who seizes any books or works in pursuance of this section shall forthwith bring all such books or works before a court of summary jurisdiction.

(4.) A court of summary jurisdiction may, on the application of any person interested, make such order for the disposal of the books or works as he thinks just.

(5.) A person shall not lodge any request at any police station in accordance with this section without just cause.

Penalty: Twenty pounds.

(6.) In any prosecution under subsection (5) of this section the defendant shall be deemed to have lodged the request without just cause unless he proves, to the satisfaction of the court at the hearing, that at the time of lodging the request 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 pirated reproductions of the book or work were being unlawfully sold, or let for hire, or exposed or offered or kept for sale or hire, or distributed, or exhibited in public, in the town or district in which the police station is situated.

Application of penalties

57. Application of penalties.– Where proceedings for any penalty under this Act are instituted by the owner of the copyright in any book or in any artistic work or by the owner of the artistic work, the penalty shall be paid to him by way of compensation for the injury he has sustained. In any other case the penalty shall be paid to the Consolidated Revenue Fund.

Aiders and abettors

58. Aiders and abettors.– Whoever aids, abets, counsels, or procures, or by act or omission is in any way, directly or indirectly, knowingly concerned in the commission of any offence against this Act, shall be deemed to have committed that offence, and shall be punishable accordingly.

Limitation in court of summary jurisdiction

59. Limitation of actions in court of summary jurisdiction.– Proceedings may be instituted in any court of summary jurisdiction for the recovery of any penalty under this Act, but no such proceedings shall be instituted after the expiration of six months from the date of the offence in respect of which the penalty is imposed.

Appeal

60. Appeal from courts of summary jurisdiction.– An appeal shall lie from any conviction or order (including any dismissal of any information, complaint, or application) of a court of summary jurisdiction, exercising jurisdiction with respect to any offence or matter under this Act, to the court and in the manner and time provided by the law of the State in which the proceedings were instituted in the case of appeals from courts of summary jurisdiction in that State.

Importation of pirated works

61. Importation of pirated works.– (1.) The following goods are prohibited to be imported: —

(a) All pirated books in which copyright is subsisting in Australia (whether under this Act or otherwise), and

(b) All pirated artistic works in which copyright is subsisting in Australia (whether under this Act or otherwise).

(2.) All pirated books and pirated artistic works imported into Australia contrary to this section shall be forfeited and may be seized by any officer of Customs.

(3.) Subject to this Act the provisions of the Customs Act, 1901, shall apply to the seizure and forfeiture of pirated books and artistic works under this section to the same extent as if they were prohibited imports under that Act.

(4.) The provisions of this section shall not apply to any book or artistic work unless the owner of the copyright therein or his agent has given written notice to the Minister of the existence of the copyright and of its term.

(5.) A notice given to the Commissioners of Customs of the United Kingdom, by the owner of the copyright or his agent, of the existence of the copyright in a book or artistic work and of its term, and communicated by the said Commissioners to the Minister shall be deemed to have been given by the owner to the Minister.

PART VI. – INTERNATIONAL AND STATE COPYRIGHT

Protection of international and state copyrights

62. Protection in Australia of international and State copyright.– The owner of any copyright or performing right in any literary, musical, or dramatic work or artistic work entitled to protection in Australia by virtue of any Act of the Parliament of the United Kingdom or entitled to protection in any State by virtue of any State Copyright Act in force at the commencement of this Act shall on obtaining a certificate of the registration of his copyright or performing right under this part of this Act have the same protection in the Commonwealth against the infringement of his copyright or performing right as the owner of any copyright or performing right under this Act.

Registration of international copyright

63. Registration of international copyright.– (1.) The owner of any copyright or performing right who desires to obtain the benefit of this part of this Act may, in manner and in accordance with the form prescribed, make application to the Registrar for the registration of his copyright or performing right.

(2.) – The Registrar may thereupon, and on being satisfied by proof of the prescribed particulars and on payment of the prescribed fee, register the copyright or performing right and issue to the applicant a certificate of registration in accordance with the prescribed form.

PART VII. – REGISTRATION OF COPYRIGHTS

Copyright registers

64. Copyright Registers.– The following Registers of copyrights shall be kept by the Registrar at the Copyrights Office: —

The Register of Literary Copyrights.

The Register of Fine Arts Copyrights.

The Register of International and State Copyrights.

Method of registration

65. Method of registration.– The owner of any copyright performing right or lecturing right under this Act may obtain registration of his right in the manner prescribed.

Registration of assignments and transmissions

66. Registration of assignments and transmissions.– When any person becomes entitled to any copyright performing right or lecturing right under this Act by virtue of any assignment or transmission, or to any interest therein by licence, he may obtain registration of the assignment, transmission, or licence in the manner prescribed.

How registration effected

67. How registration effected.– The registration of any copyright performing right or lecturing right under this Act, or of any assignment or transmission thereof or of any interest therein by licence, shall be effected by entering in the proper register, the prescribed particulars relating to the right, assignment, transmission, or licence.

Trusts not registered

68. Trusts not registered.– (1.) No notice of any trust expressed, implied, or constructive shall be entered in any Register of Copyrights under this Act or be receivable by the Registrar.

(2.) Subject to this section, equities in respect of any copyright performing right or lecturing right under this Act may be enforced in the same manner as equities in respect of other personal property.

Register to be evidence

69. Register to be evidence.– Every Register of copyrights under this Act shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entry therein or extracts therefrom certified by the Registrar and sealed with the seal of the Copyrights Office shall be admissible in evidence in all Federal or State courts without further proof or production of the originals.

Certified copies

70. Certified copies.– Certified copies of entries in any register under this Act or of extracts therefrom shall, on payment of the prescribed fee, be given to any person applying for them.

Inspection of register

71. Inspection of register.– Each register under this Act shall be open to public inspection at all convenient times on payment of the prescribed fee.

Correction of register

72. Correction of register.– The registrar may, in prescribed cases and subject to the prescribed conditions, amend or alter any register under this Act by —

(a) correcting any error in any name, address, or particular; and

(b) entering any prescribed memorandum or particular relating to copyright or other right under this Act.

Rectification of register by the court

73. Rectification of register by the court.– (1.) Subject to this Act the Supreme Court of any State or a judge thereof may, on the application of the Registrar or of any person aggrieved, order the rectification of any register under this Act by —

(a) the making of any entry wrongly omitted to be made in the register; or

(b) the expunging of any entry wrongly made in or remaining on the register; or

(c) the correction of any error or defect in the register.

(2.) An appeal shall lie to the High Court from any order for the rectification of any register made by a Supreme Court or a Judge under this section.

No suit before registration

74. Owner cannot sue before registration.– (1.) The owner of any copyright or performing right under this Act or of any interest therein by licence shall not be entitled to bring any action or suit or institute any proceedings for any infringement of the copyright or performing right unless such right or interest has been registered in pursuance of this Act.

(2.) When such right or interest has been registered the owner thereof may, subject to this Act, bring actions or suits or institute proceedings for infringements of the copyright or performing right, whether those infringements happened before or after the registration.

(3.) This section shall not affect the right of the owner of the lecturing right in a lecture to bring actions or suits or institute proceedings for infringements of his lecturing right.

Deposit

75. Delivery of books to registrar.– (1.) Every person applying for the registration of the copyright in any book shall deliver to the Registrar two copies of the whole book with all maps and illustrations belonging thereto, finished and coloured in the same manner as the best copies of the book are published and bound, sewed, or stitched together, and on the best paper on which the book is printed.

(2.) Every person applying for the registration of the copyright in any work of art shall deliver to the Registrar one copy of the work of art or a photograph of it.

(3.) The Registrar shall refuse to register the copyright in any book or work of art until subsections (1) and (2) of this section have been complied with.

(4.) One copy of each book delivered to the Registrar in pursuance of this section shall be forwarded by him to the librarian of the Parliament, and the other copy shall be retained by the Registrar, until otherwise prescribed.

False representation

76. False representation to registrar. Patents Act, 1903, s. 112.– No person shall wilfully make any false statement or representation to deceive the Registrar or any officer in the execution of this part of this Act, or to procure or influence the doing or omission of any thing in relation to this part of this Act or any matter thereunder.

Penalty: Three years' imprisonment.

PART VIII. – MISCELLANEOUS

Suppression of books

77. Provision against suppression of books.– If the Governor-General is satisfied that the owner of the copyright in any book, or of the performing right in any dramatic work or musical work, or of the lecturing right in any lecture, has refused, after the death of the author, to republish or allow republication of the book, or the public performance of the dramatic or musical work, or the publication as a book of the lecture, and that by reason thereof the book, dramatic work, musical work, or lecture is withheld from the public, he may grant any person applying for it a licence to republish the book, or to perform the dramatic work, or musical work, or to publish the lecture as a book, in such manner and subject to such conditions as to the Governor-General seem fit.

Award of costs

78. Power to award costs.– In any action or proceeding taken in any court under this Act, the court shall have power to award costs at its discretion.

Regulations

79. Regulations.– The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect to this Act, or for the conduct of any business relating to the Copyrights Office.

III

INTERNATIONAL COPYRIGHT UNION: CONVENTIONS

9. BERNE CONVENTION, 1886, with Paris amendments, 1896, in italics [omissions bracketed]

Article I

Union to protect literary and artistic works

The contracting States are constituted into an Union for the protection of the rights of authors over their literary and artistic works.

Article IV

Definition of "literary and artistic works"

The expression "literary and artistic works" comprehends books, pamphlets, and all other writings; dramatic or dramatico-musical works, musical compositions with or without words; works of design, painting, sculpture, and engraving; lithographs, illustrations, geographical charts; plans, sketches, and plastic works relative to geography, topography, architecture, or science in general; in fact, every production whatsoever in the literary, scientific, or artistic domain which can be published by any mode of impression or reproduction.

Paris II, 1

Works of architecture protected

(a.) In the countries of the Union in which protection is accorded not only to architectural designs, but to the actual works of architecture, those works are admitted to the benefit of the provisions of the Convention of Berne and of the present additional act.

Protocol

Choreographic works protected

2. As regards Article IX, it is agreed that those countries of the Union whose legislation implicitly includes choreographic works amongst dramatico-musical works, expressly admit the former works to the benefits of the Convention concluded this day.

It is, however, understood that questions which may arise on the application of this clause shall rest within the competence of the respective tribunals to decide.

Article VI

Translations, arrangements, and adaptations protected

Authorized translations are protected as original works. They consequently enjoy the protection stipulated in Articles II and III as regards their unauthorized reproduction in the countries of the Union.

New translations by other writers

It is understood that, in the case of a work for which the translating right has fallen into the public domain, the translator cannot oppose the translation of the same work by other writers.

Protocol

Photographic works protected

1. As regards Article IV, it is agreed [that those countries of the Union where the character of artistic works is not refused to photographs, engage to admit them to the benefits of the Convention concluded to-day, from the date of its coming into effect. They are, however, not bound to protect the authors of such works further than is permitted by their own legislation, except in the case of international engagements already existing, or which may hereafter be entered into by them.

Paris II, 1

(b.) Photographic works, and those obtained by similar processes, are admitted to the benefit of the provisions of these acts, in so far as the domestic legislation allows this to be done, and according to the measure of protection which it gives to similar national works.

[Protocol 1, par. 2]

Photograph of work of art protected

It is understood that an authorized photograph of a protected work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the said Convention and the additional act, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights.

Article II

Authors to enjoy in countries of the Union the rights granted to natives

Authors of any one of the countries of the Union, or their lawful representatives, shall enjoy in the other countries for their works [whether published in one of those countries or unpublished], either not published or published for the first time in one of those countries, the rights which the respective laws do now or may hereafter grant to natives.

No formalities required

[Conditions and formalities of country of origin]

The enjoyment of these rights is subject to the accomplishment of the conditions and formalities prescribed by law in the country of origin of the work, and cannot exceed in the other countries the term of protection granted in the said country of origin.

[Paris Declaration]

1. By the terms of paragraph 2 of Article II of the Convention, the protection granted by the aforementioned Act depends solely on the accomplishment in the country of origin of the work of the conditions and formalities that may be prescribed by the legislation of that country. The same rule applies to the protection of the photographic works mentioned in No. 1 (b), of the modified "Protocole de Clôture."

[Art. II, par. 3, 4]

Definition of country of origin

The country of origin of the work is that in which the work is first published, or if such publication takes place simultaneously in several countries of the Union, that one of them in which the shortest term of protection is granted by law. For unpublished works the country to which the author belongs is considered the country of origin of the work.

Paris Declaration

Published works

2. By "published" works must be understood works actually issued to the public in one of the countries of the Union. Consequently, the representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibition of a work of art, do not constitute publication in the sense of the aforementioned Acts.

Article III

Authors not belonging to countries of the Union also protected if they first publish in a Union country

[The stipulations of the present Convention apply equally to the publishers of literary and artistic works published in one of the countries of the Union, but of which the authors belong to a country which is not a party to the Union.]

Authors, not subjects of one of the countries of the Union, but who shall have published or caused to be published for the first time, their literary or artistic works in one of those countries, shall enjoy for those works the protection accorded by the Berne Convention, and by the present additional act.

[Art. II, par. 2]

The enjoyments of these rights … cannot exceed in the other countries the term of protection granted in the said country of origin.

[Art. II, add. par.]

Term for photographic, posthumous, anonymous or pseudonymous works

Posthumous works are included amongst protected works.

Article V

Exclusive right of translation

Authors of any of the countries of the Union, or their lawful representatives, shall enjoy in the other countries the exclusive right of making or authorizing the translation of their works [until the expiration of ten years from the publication of the original work in one of the countries of the Union] during the whole duration of the right in the original work. But the exclusive right of translation shall cease to exist when the author shall not have made use of it within a period of ten years from the first publication of the original work, by publishing or causing to be published in one of the countries of the Union, a translation in the language for which protection shall be claimed.

Works published in incomplete parts

For works published in incomplete parts ("livraisons") the period of ten years commences from the date of publication of the last part of the original work.

Works published in several volumes

For works composed of several volumes published at intervals, as well as for bulletins or collections ("cahiers") published by literary or scientific societies, or by private persons, each volume, bulletin, or collection is, with regard to the period of ten years, considered a separate work.

In the cases provided for by the present article, and for the calculation of the period of protection, the 31st of December of the year in which the work was published is admitted as the date of publication.

Article VII

Serials and other works in newspapers or periodicals protected

Serial stories ("romans-feuilletons"), including novels, published in newspapers or periodicals of one of the countries of the Union, cannot be reproduced, in original or in translation, in the other countries, without the authorization of their authors or of their lawful representatives.

Reproduction of newspaper articles

[Articles from newspapers or periodicals published in any of the countries of the Union may be reproduced in original or in translation in the other countries of the Union, unless the authors or publishers have expressly forbidden it. For periodicals it is sufficient if the prohibition is made in a general manner at the beginning of each number of the periodical.]

This applies equally to other articles in newspapers or periodicals, whenever the authors or publishers shall have expressly declared in the paper or periodical in which they may have published them, that they forbid their reproduction. For periodicals it is sufficient if the prohibition is made in a general way, at the beginning of each number.

In the absence of prohibition, reproduction will be permitted on condition of indicating the source.

News matter not protected

This prohibition cannot in any case apply to articles of political discussion, [or to the reproduction of news of the day or current topics,] to the news of the day, or to current topics.

Article VIII

Extracts from literary or artistic works

As regards the liberty of extracting portions from literary or artistic works for use in publications destined for educational or scientific purposes or for chrestomathies, the matter is to be decided by the legislation of the different countries of the Union, or by special arrangements existing or to be concluded between them.

Article IX

Representation of dramatic or dramatico-musical works

The stipulations of Article II apply to the public representation of dramatic or dramatico-musical works whether such works be published or not.

Representation of translations

Authors of dramatic or dramatico-musical works, or their lawful representatives, are, during the existence of their exclusive right of translation, equally protected against the unauthorized public representation of translations of their works.

Notice of prohibition of performance not required

The stipulations of Article II apply equally to the public performance of unpublished musical works, or of published works in which the author has expressly declared on the title-page or commencement of the work that he forbids the public performance.