Tuesday, 25 October 2005
I don’t have time to say much at this stage on the TPM submissions, made to the Legal and Constitutional Affairs Committee in the context of its current review. I’m reading through them, in the hope of producing a kind of concentrated summary as I did for the fair dealing review. I suspect there are many more yet to come onto the website. I’ve already commented on the CAL submission, of course.
However, I commend to interested people the ABC submission. In its discussion, the ABC makes it clear just why some exceptions are necessary, if we are to have an effective free media. The submission highlights the practicalities that sometimes intrude and that academics like me sometimes forget. In particular, the submission makes the explicit argument that:
Australian law must comply with the implied right to governmental and political discussion. Any law which protects TPMs but which does not permit an exception to allow free government and political discussion will not be appropriate and adapted to its purpose and will be unconstitutional.
This implied constitutional right plays a critical role in the media and is fundamental to the ABC meeting its charter.’
Interesting reading.
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2 Responses to “Must-read TPM submission of the day”
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October 25th, 2005 at 4:00 pm
Don’t forget Kirby J.’s s 51(xxxi) Constitutional red flag in Sony v Stevens that copyright interests must be concordant with ‘the normal interest of property owners in the undisturbed enjoyment of their property’* .
This is the ‘acquisition of property on just terms’ clause so famously used here :
http://www.imdb.com/title/tt0118826/
*Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 at 167. Constitution, s 51(xxxi).
October 25th, 2005 at 7:12 pm
But who are the “property owners”.
Are you talking about the copyright right of “property”?
This constitutional argument was canvassed during the moral rights debates and stakeholder consultation. In essence, AGs position was that copyright is a statutory right so it is shaped and modulated and limited by statute – if there are limitations this is not “acquisitions” that need to be compensated, but limitations which are inherent in the nature of the right itself. See further various Medicare cases about the nature of a statutory right and whether it is “property” which is limited.