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Australia-US Copyright Relations: An Unhurried View of the Reciprocal Protection of Literary Works

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Copyright, Property and the Social Contract
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Abstract

The legal recognition by Australia and the United States of each other’s copyright works has undergone a dramatic change since the foundation of the Berne Convention for the Protection of Literary and Artistic Works in the nineteenth century. In some respects the legal relationship has inverted. This chapter examines the reciprocal protection of literary works that have been produced by citizens of the United States and citizens of Australia since the beginnings of that Convention. Inherent in this examination is to what degree national interests have influenced the extent and nature of protection in these two countries.

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Notes

  1. 1.

    Ricketson (1987), p. 591.

  2. 2.

    ‘Free’ trade is a misnomer if the word ‘free’ is construed as completely free. AUSFTA seeks to reduce barriers to trade between the US and Australia and represents a negotiated outcome between those Governments.

  3. 3.

    This extension of protection did not include Commonwealth and State works.

  4. 4.

    Office of the United States Trade Representative, Executive Office of the President, (USTR) 1989 Special 301 Report (May 25, 1989) 1 <https://ustr.gov/sites/default/files/1989%20Special%20301%20Report.pdf>. As an amendment by section 1302 of the Omnibus Foreign Trade and Competitiveness Act, Special 301 (which focuses on IP rights) required the USTR for 1989 and 1990 and for some years subsequently to issue a report on its trade priorities and to identify priority foreign countries that practiced unfair trade and priority practices that had the greatest effect on restricting US exports. The USTR then would initiate a Section 301 investigation under the US Trade Act of 1974 against the priority countries to obtain elimination of the practices that impeded U.S. exports, in the expectation that doing so would substantially expand U.S. exports.

  5. 5.

    Ibid.

  6. 6.

    Ibid.

  7. 7.

    ‘Priority foreign countries are those countries that:

    1. (1)

      have the most onerous and egregious acts, policies and practices which have the greatest adverse impact (actual or potential) on the relevant U.S. products; and,

    2. (2)

      are not engaged in good faith negotiations or making significant progress in negotiations to address these problems’.

      Office of the United States Trade Representative, Executive Office of the President, (hereafter cited simply as USTR) 1994 Special 301 Report (April 30 1994) 8 <https://ustr.gov/sites/default/files/1994%20Special%20301%20Report.pdf>.

  8. 8.

    USTR, 1991 Special 301 Report (April 26, 1991) 4 <https://ustr.gov/sites/default/files/1994%20Special%20301%20Report.pdf>.

  9. 9.

    USTR, 1992 Special 301 Report (April 29, 1992) 7 (3) <https://ustr.gov/sites/default/files/1992%20Special%20301%20Report.pdf>.

  10. 10.

    The (US) Administration uses the “watch list” as a means to monitor progress in implementing commitments with regard to the protection of intellectual property rights and for providing comparable market access for U.S. intellectual property products. Office of the USTR, 1994 Special 301 Report (April 30 1994) 12 <https://ustr.gov/sites/default/files/1994%20Special%20301%20Report.pdf>.

  11. 11.

    USTR, 1994 Special 301 Report (April 30 1994) 12-13 <https://ustr.gov/sites/default/files/1994%20Special%20301%20Report.pdf>.

  12. 12.

    USTR, 1996 Special 301 Report (April 30 1996) 11 <https://ustr.gov/sites/default/files/1996%20Special%20301%20Report.pdf>.

  13. 13.

    USTR, 1997 Special 301 Report (April 30 1997) 11 <https://ustr.gov/sites/default/files/1997%20Special%20301%20Report.pdf>.

  14. 14.

    USTR, 1999 Special 301 Report (April 30, 1999) 14 <https://ustr.gov/sites/default/files/1999%20Special%20301%20Report.pdf>. The Copyright Amendment Act (No 2) 1998 inserted s44D in the Copyright Act 1968 which enabled the parallel importation of non-infringing copies of sound recordings.

  15. 15.

    Section 301(1) of the U.S. Trade Act of 1974, (Pub.L. 93–618, 19 U.S.C. § 2411) provides:

    • (a) Mandatory action.—

    • (1) If the United States Trade Representative determines under section 2414(a) of this title that—

    • (A) the rights of the United States under any trade agreement are being denied; or

    • (B) an act, policy, or practice of a foreign country—

      • (i) violates, or is inconsistent with, the provisions of, or otherwise denies benefits to the United States under, any trade agreement, or

      • (ii) is unjustifiable and burdens or restricts United States commerce;

    the Trade Representative shall take action authorized in subsection (c), subject to the specific direction, if any, of the President regarding any such action, and shall take all other appropriate and feasible action within the power of the President that the President may direct the Trade Representative to take under this subsection, to enforce such rights or to obtain the elimination of such act, policy, or practice. Actions may be taken that are within the power of the President with respect to trade in any goods or services, or with respect to any other area of pertinent relations with the foreign country.

  16. 16.

    Ukraine was not then a member of the WTO. Refer Office of the United States Trade Representative, Executive Office of the President, 2002 Special 301 Report 1, 16 <https://ustr.gov/sites/default/files/2002%20Special%20301%20Report.pdf>.

  17. 17.

    USTR, 1996 Special 301 Report (April 30, 1996) 8. <https://ustr.gov/sites/default/files/1996%20Special%20301%20Report.pdf>. The International Intellectual Property Alliance (IIPA), ‘a private sector coalition, formed in 1984, of trade associations representing U.S. copyright-based industries in bilateral and multilateral efforts working to improve international protection and enforcement of copyrighted materials and open up foreign markets closed by piracy and other market access barriers’ has, since 2001, produced its own Special 301 Reports with Priority Watch Lists and Watch lists which are submitted to the USTR in support of its goals. <http://www.iipa.com/special301.html>.

  18. 18.

    In its Panel submissions ‘the US itself volunteered that Sections 301-310 are an unpopular piece of legislation’. United States - Sections 301-310 of the Trade Act of 1974, WTO Panel Report, WT/DS152/R, adopted January 27, 2000, para 7.11 <http://www.sice.oas.org/DISPUTE/wto/tract36e.asp#FINDINGS>.

  19. 19.

    See United States - Sections 301-310 of the Trade Act of 1974, WTO Panel Report, WT/DS152/R, adopted January 27, 2000, paras. 7.38–7.39 <http://www.sice.oas.org/DISPUTE/wto/tract36e.asp#FINDINGS>

  20. 20.

    USTR, 2000 Special 301 Report (May 1, 2000) 15 <https://ustr.gov/sites/default/files/2000%20Special%20301%20Report.pdf>. Priority Watch List … ‘The European Union: In 1999, the United States initiated WTO dispute settlement proceedings against the European Union regarding its regulation concerning geographical indications for foodstuffs and agricultural products. Concerns have been expressed that this regulation denies national treatment and does not adequately protect pre-existing trademarks. The EU continues to deny national treatment to U.S. intellectual property right holders in other areas as well. For example, the reciprocity requirement in the data base directive continues to be of concern. Restrictions in certain member states also deny market access opportunities for U.S. right holders. The Administration has made several efforts to address other intellectual property issues of concern to the United States in the context of the U.S. - EU TransAtlantic Economic Partnership -- those efforts have produced little result to date, though the United States remains hopeful of progress in these areas’.

  21. 21.

    United States. CENDI. Issues Affecting the US Government (October 8, 2008, 2008-1) 3.1.7. ‘Copyright is sometimes asserted by U.S. Government agencies outside the United States’ <http://www.cendi.gov/publications/04-8copyright.html#317>.

  22. 22.

    United States. House of Representatives Report No 94-1476, Copyright Law Revision (September 3, 1976) 94th Congress, 2d Session, 59 <http://www.copyright.gov/history/law/clrev_94-1476.pdf>.

  23. 23.

    Explanatory Statement, Copyright (International Protection) Amendment Regulations 1998 (No. 1) 1998 No. 360 (Cth) <https://www.comlaw.gov.au/Details/F1998B00377/Explanatory%20Statement/Text>.

  24. 24.

    WIPO. Berne Convention for the Protection of Literary and Artistic Works, (Paris Act as amended on September 28, 1979) Article 7(8) <http://www.wipo.int/treaties/en/text.jsp?file_id=283698#P127_22000>.

  25. 25.

    Refer Australia. Productivity Commission, Intellectual Property Arrangements: Productivity Commission Inquiry Report No 78 (23 September 2016) Canberra, 107 <http://www.pc.gov.au/inquiries/completed/intellectual-property/report/intellectual-property.pdf>.

  26. 26.

    Australia. Department of Foreign Affairs and Trade, Text of the Trans-Pacific Partnership Agreement, 18 Intellectual Property <http://dfat.gov.au/trade/agreements/not-yet-in-force/tpp-11/official-documents/Documents/18-intellectual-property.pdf.>. Footnote 147 to the Article states ‘For greater certainty, paragraph 2 should not be interpreted as encouraging regional government agencies to use infringing computer software or, if applicable, to use computer software in a manner which is not authorised by the relevant licence’.

  27. 27.

    USTR, 2006 Special 301 Report, 9 <https://ustr.gov/sites/default/files/2006%20Special%20301%20Report.pdf>.

  28. 28.

    Nimmer (1992), pp. 211, 214.

  29. 29.

    Doern and Tomlin (1991), p. 97. Writers in Canada and New Zealand for example, have expressed concern about the inclusion of cultural industries in free trade agreements with the United States. As Edwardson states, ‘Little if any sympathy was shown for the struggle to ensure cultural discourse in a domestic marketplace favouring imports, let alone the broader importance that Canadians placed upon culture as a means of consolidating nationhood’: Edwardson (2008), p. 255. Refer also Kelsey (1999), pp. 357ff. ‘…the collision between the universalising goal of globalization and people’s deep-seated notions of sovereignty, democratic government and tino rangatiratanga has created tensions that seem impossible to reconcile’.

  30. 30.

    Recital 3 provides ‘Audiovisual media services are as much cultural services as they are economic services. Their growing importance for societies, democracy—in particular by ensuring freedom of information, diversity of opinion and media pluralism—education and culture justifies the application of specific rules to these services’.

  31. 31.

    Refer World Trade Organisation, Chronological List of Disputes Cases <https://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm> and Disputes by Country or Territory <https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm>; also

    USTR 1991 Special 301 Report (April 26, 1991) 3. <https://ustr.gov/sites/default/files/1991%20Special%20301%20Report.pdf> OR <http://keionline.org/sites/default/files/ustr_special301_1991.pdf>.

    USTR 1992 Special 301 Report (April 29, 1992) 7 (3) <https://ustr.gov/sites/default/files/1992%20Special%20301%20Report.pdf>.

    USTR 1995 Special 301 Report (April 29, 1995) 8 (4) <https://ustr.gov/sites/default/files/1995%20Special%20301%20Report.pdf>.

    USTR 1996 Special 301 Report (April 30, 1996) 9 <https://ustr.gov/sites/default/files/1996%20Special%20301%20Report.pdf>.

    USTR 1997 Special 301 Report (April 30, 1997) 9 <https://ustr.gov/sites/default/files/1997%20Special%20301%20Report.pdf>.

    USTR 1998 Special 301 Report (May 1, 1998) 11 <https://ustr.gov/sites/default/files/1998%20Special%20301%20Report.pdf>.

    USTR 1999 Special 301 Report (April 30, 1999) 5, 10, 11 <https://ustr.gov/sites/default/files/1999%20Special%20301%20Report.pdf>.

    USTR 2000 Special 301 Report (May 1, 2000) 15 <https://ustr.gov/sites/default/files/2000%20Special%20301%20Report.pdf>.

    USTR 2001 Special 301 Report (April, 2001) 8, 18 <https://ustr.gov/sites/default/files/2001%20Special%20301%20Report.pdf>.

    USTR 2002 Special 301 Report (April, 2002) 7, 20 <https://ustr.gov/sites/default/files/2002%20Special%20301%20Report.pdf>.

    USTR 2003 Special 301 Report (May 1, 2003) 7, 13 <https://ustr.gov/sites/default/files/2003%20Special%20301%20Report.pdf>.

    USTR 2004 Special 301 Report (April, 2004) 8, 16 <https://ustr.gov/sites/default/files/2004%20Special%20301%20Report.pdf>.

    USTR 2005 Special 301 Report (April, 2005) 12 <https://ustr.gov/sites/default/files/2005%20Special%20301%20Report.pdf>.

  32. 32.

    By a delegate and an observer respectively: refer Ricketson (1987), pp. 72, 79.

  33. 33.

    Nimmer (1992), pp. 211, 212, 213.

    Harvey J Winter, then Director of the Office of Business Practices of the United States Department of State, also commented: ‘The history of international copyright during the nineteenth century in the United States is not one of which we can be proud. The first United States copyright law, enacted in 1790 gave copyright protection only for those works of United States citizens and residents which were published in the United States. This situation generally endued for the next century. As a consequence, foreign works, especially those of British origin, were not protected in the United States and, thus, were widely pirated. During the last half of this century, and especially after the Civil War, numerous attempts were made to establish international copyright protection in the United States, but none were successful until the enactment of the Act of March 3, 1891’. Duboff et al. (1985), pp. 203–232, 210. See also Budd (1994), p. 172.

  34. 34.

    Khan (2008), pp. 27, 50. Selected edition. Available from: <http://socialsciences.scielo.org/scielo.php?script=sci_arttext&pid=S0124-59962008000100002&lng=en&nrm=iso>. ISSN 0124-5996.

  35. 35.

    Wilf (2011), pp. 123–160, 135.

  36. 36.

    United States. Fifty-First Congress. Sess II CH 565. 1891. Named for Senator Jonathan Chace, of Rhode Island, who introduced the bill into Congress.

  37. 37.

    As well as citizens of Belgium, France and Switzerland.

  38. 38.

    Routledge v Low (1868) LR 3 HL 100. No Order in Council under the International Copyright Acts 1844-1886 (UK) was made extending the protection given under that Act to works of United States citizens.

  39. 39.

    Routledge v Low (1868) LR 3 HL 100, 110-111.

  40. 40.

    Routledge v Low (1868) LR 3 HL 100, 118. Lord Colonsay abstained from expressing an opinion beyond the necessary conclusion that residency within any portion of the British dominions enabled protection under the Act ‘although I can easily see that there is very little benefit to be gained to British authors by refusing to extend the protection of copyright in the manner suggested, because nothing can be more shadowy than a distinction depending upon the circumstance of a few hours’ or a few days’ residence within some part of the widely-extended dominions of Her Majesty’ (at 120). Lord Chelmsford and Lord Cranworth expressed doubts about whether the wider view of Lord Cairns was well founded.

  41. 41.

    Section 11 of the International Copyright Act 1886, 49 and 50 Vict c33 (UK) provided, ‘The expression “British possession” includes any part of Her Majesty’s dominions exclusive of the United Kingdom; and where parts of such dominions are under both a central and a local legislature, all parts under one central legislature are for the purposes of this definition deemed to be one British possession.’

  42. 42.

    Finnamore (1881), p. 720; Lindgren et al. (2004). Refer further, Bond (2010), pp. 452–477.

  43. 43.

    The Act was passed on 25 June 1886.

  44. 44.

    Copyright Act 1879 (NSW); Copyright Act 1878 (SA); Copyright Act 1869 and Copyright Act 1890 (Vic). The colony of Western Australia followed with the Copyright Act 1895.

  45. 45.

    Ringer (1968), pp. 1050, 1057. Barbara Ringer was US Register of Copyrights 1973–1980.

  46. 46.

    United States. Fifty-First Congress. Sess II CH 565. 1891.

  47. 47.

    The 1976 general revision of US copyright law provided for the first time an expiry date for the manufacturing clause by specifying it was to be applied ‘prior to 1 July 1982’. On 13 July 1982, Congress passed a bill changing the date prior to which the manufacturing clause was to be applied from 1 July 1982 to 1 July 1986 (Public Law 97-215 of 13 July 1982). In 1984 the manufacturing clause was found to be inconsistent with Article XI of the General Agreement on Tariffs and Trade. GATT. THE UNITED STATES MANUFACTURING CLAUSE: Report of the Panel adopted on 15/16 May 1984 (L/5609 - 31S/74) 2, 12 <https://www.wto.org/english/tratop_e/dispu_e/83copyrt.pdf>.

  48. 48.

    Curtain (1992), p. 2.

  49. 49.

    Which came into force on 1 January 1907.

  50. 50.

    Colonial conferences from 1887 and the successor Imperial Conferences after 1907 were regularly held for the colonies and dominions of the British Empire during this period and were predecessors of the present Commonwealth Heads of Government meetings.

  51. 51.

    Which was endorsed by the dominions in the Imperial Conference of 1911.

  52. 52.

    However, a dominion could only modify the provisions of the British legislation if the modifications applied to the jurisdiction of the dominion alone. If a dominion chose to ignore the British legislation it would possess no rights in other parts of the Empire except as conferred by Order in Council or by order of the Governor of a dominion in Council.

  53. 53.

    Section 30(1) of the Copyright Act 1911 (Imp).

  54. 54.

    Commonwealth of Australia Gazette, No 41, 21 March 1918, 504.

  55. 55.

    See for example, Crime Commn v Kelly (2003) 58 NSWLR 71 at 79 and Pearce and Geddes (2011), pp. 50–51.

  56. 56.

    That is, a treaty mainly concerned with relations between governments.

  57. 57.

    Act of March 4, 1909, 35 Stat 1075.

  58. 58.

    Act of March 28, 1914, 38 Stat 311.

  59. 59.

    Refer above n 39.

  60. 60.

    Prior to 1955 the United States determined its international copyright relations almost exclusively by bilateral treaties. It entered into a regional treaty—the Buenos Aires Convention of 1910 with 16 Latin and South American countries (non-English speaking countries).

  61. 61.

    WIPO. Universal Copyright Convention of 6 September 1952, <http://portal.unesco.org/en/ev.php-URL_ID=15381&URL_DO=DO_TOPIC&URL_SECTION=201.html> or <http://www.wipo.int/wipolex/en/other_treaties/details.jsp?treaty_id=208>. The UCC entered into force on 16 September 1955. The US ratified the Convention on 6 December 1954.

  62. 62.

    This Article remained unchanged in the 1971 revision of the Universal Copyright Convention.

  63. 63.

    Australia. Report of the Copyright Law Review Committee (1959), 16 (para 52).

  64. 64.

    United States v Addison-Wesley Publishing Co CCH 1976-2 Trade Cases 70.640; [1976] 2 Trade Cas. 61,225 (S.D.N.Y. 1976) (consent judgment). The United States, acting through the Department of Justice, obtained a consent decree that prohibited a number of US publishing firms from engaging in market allocation with British publishers.

  65. 65.

    Importation of 2 or more copies of a non-infringing book was also permitted by libraries for non-commercial use (s 44(4)).

  66. 66.

    ‘The 1991 amendments appear to have improved the speed with which new best seller titles are made available in Australia and broadened the possible range of books that may be parallel imported. But they have not resulted in a removal of higher prices being charged in Australia for high-demand titles’: Explanatory Memorandum, Copyright Amendment (Parallel Importation) Bill 2002 (Cth) Problem Identification para 1.2. <https://www.comlaw.gov.au/Details/C2004B01244/Explanatory%20Memorandum/Text>.

  67. 67.

    Australian Book Publishers Association Ltd., 1995 Submission to the Prices Surveillance Authority Inquiry into the Book Importation Provisions of the Copyright Act (1995). Similar subsequent amendments to s 44A were made to the Copyright Act in 1998 to enable limited parallel importation of other copyright material—sound recordings and non-infringing accessories.

  68. 68.

    Explanatory Memorandum, Copyright Amendment (Parallel Importation) Bill 2002 (Cth) para Problem Identification para 1.1 <https://www.comlaw.gov.au/Details/C2004B01244/Explanatory%20Memorandum/Text>.

  69. 69.

    Copyright Law Review Committee 1988 (1988); Copyright Law Review Committee (1995); Commonwealth of Australia: Department of Industry, Science and Tourism - Information Industries and Online Taskforce 1998 (1998); Industry Commission 1995, Report No 46, Computer Hardware, Software and Related Service Industries, (AGPS, Canberra); Prices Surveillance Authority 1991, Inquiry into Cinema Admission Prices, PSA Report No 38, Commonwealth of Australia; Prices Surveillance Authority 1992, Inquiry into Prices of Computer Software - Final Report, PSA Report No 46, Commonwealth of Australia; J Revesz (1999).

  70. 70.

    Copyright Amendment (Parallel Importation) Act 2003 (refer ss 44C, 44E, 44F of the Copyright Act 1968).

  71. 71.

    Explanatory Memorandum, Copyright Amendment (Parallel Importation) Bill 2002,(Cth) para General Outline, Problem Identification para 1.1 <https://www.comlaw.gov.au/Details/C2004B01244/Explanatory%20Memorandum/Text>.

  72. 72.

    Explanatory Memorandum, Copyright Amendment (Parallel Importation) Bill 2002,(Cth) para para 5.2 <https://www.comlaw.gov.au/Details/C2004B01244/Explanatory%20Memorandum/Text>.

  73. 73.

    The Australian Book Publishers Association changed its name in 1996 to the Australia Publishers Association to embrace the growing digital culture.

  74. 74.

    Australian Publishers Association Board of Directors (2015 & 2018) <http://www.publishers.asn.au/about-us/our-association/australian-publishers-association-board>.

  75. 75.

    Refer for example the case of Isobelle Carmody’ e-book ‘Greylands’—Australia. Book Industry Collaborative Council. Final Report 2013, 18.

  76. 76.

    World’s Richest Countries, <http://www.worldsrichestcountries.com/top_us_exports.html>.

  77. 77.

    Office of the United States Trade Representative, Executive Office of the President, 2004 Special 301 Report 10 <http://www.keionline.org/sites/default/files/ustr_special301_2004.pdf>.

  78. 78.

    Khan (2008), p. 50. Selected edition. Available from: <http://socialsciences.scielo.org/scielo.php?script=sci_arttext&pid=S0124-59962008000100002&lng=en&nrm=iso>. ISSN 0124-5996.

  79. 79.

    Sometimes referred to as eudaemonia by which I mean values which emphasize informed human sociability, creativity and wellbeing. Flourishing is sometimes characterized by four main components: goodness, generative, growth, and resilience. Refer, for example, Fredrickson and Losada (2005), pp. 678–686.

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Gilchrist, J. (2018). Australia-US Copyright Relations: An Unhurried View of the Reciprocal Protection of Literary Works. In: Gilchrist, J., Fitzgerald, B. (eds) Copyright, Property and the Social Contract. Springer, Cham. https://doi.org/10.1007/978-3-319-95690-9_6

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