REFLECTIONS ON AUTHORSHIP AND THE MEANING OF A “WORK” IN AUSTRALIAN AND SINGAPORE COPYRIGHT LAW

• Citation: (2012) 24 SAcLJ 792
• Published date: 01 December 2012
• Date: 01 December 2012

While other articles in this special issue discuss changing standards of originality in copyright law, this article deals with a number of further issues that are closely related, and which have great practical implications in both the traditional print and online environments. It begins with a consideration of the concept of authorship and the meaning of a “work”, and how these matters affect one's understanding of the standard that is to be applied when considering the question of copyright subsistence. National and international approaches are considered, particularly with reference to the provisions of the Berne Convention for the Protection of Literary and Artistic Works and recent Australian decisions in which the link between authors and their works has been stressed. The following issues are then discussed: whether there is a quantum requirement for the purposes of determining that something is a “work” in the first place; the activities that are to be included within the scope of the term “authorship”; whether there are meaningful boundaries to be drawn between different species of works, in particular, literary and artistic works; the degree to which human involvement is necessary for the purposes of showing that a work is one of authorship; and the problems of multiple authors, particularly in the online environment.

I. Introduction

1 Several of the articles in this special issue deal with, in different ways, the meaning of “originality” in copyright law and the way in whic

this concept appears to be bringing US, Australian and Singapore laws to something closer to the civil law concept of “intellectual creation”. It is not the purpose of the present article to canvass this territory again in any detail.1 Rather, the intention is to investigate some further issues that are closely related, if not fundamental to, any proper consideration of standards of originality, and which have great practical implications in both the traditional print and online environments: the concept of authorship and the meaning of a “work”, and how these matters play into the standard that we should apply when considering the question of copyright subsistence. Various consequential issues then arise for consideration, including the following: whether there is a quantum requirement for the purposes of determining that something is a “work” in the first place; what activities are to be included within the scope of the term “authorship”; whether there are meaningful boundaries to be drawn between different species of works, in particular, literary and artistic works; the degree to which human involvement is necessary for the purposes of showing that a work is one of authorship; and the problems of multiple authors, particularly in the online environment.

2 This article begins, then, by considering what is meant by the terms “author” and “work”.

II. The starting point – National laws

3 In Australian and Singapore national laws, the link between works and authorship (and originality) is clearly articulated. Thus, both the Australian and Singapore Copyright Acts distinguish between “original literary, dramatic, musical and artistic works” (protected under Part III) and “subject-matter other than works” (Part IV).2 Some of these terms are then defined further in inclusive terms (in the case of literary works, specifically dealing with status of computer programs and compilations, as well as in the case of dramatic works, so as to apply to works of choreography and mime), exhaustive terms (in the case of artistic works) or not at all (in the case of musical works).3 However, the link between the “work” and the “author” is a prerequisite for protection under both Acts, a condition that is stated explicitly in the case of

unpublished works4 while being implicit for published works, in that these must be “original” and therefore the product of an act of authorship.5 In this regard, the statement of Isaacs J in an early Australian case arising under the Copyright Act 1911,6 where the same language was used, remains apposite:7

[I]n copyright law the two expressions ‘author’ and ‘original work’ have always been correlative; the one connotes the other.

4 Nonetheless, neither the Australian nor Singapore Copyright Acts provides any guidance as to the meaning of “author” or what authorial attributes must be present, with the limited exception that, in the case of photographs, the reference to “author” means the “person who took the photograph”.8 While strictly confined in its application, this definition at least has some utility when compared with the more general definition of “author” that now appears in UK legislation, to the effect that “author”, in relation to a work, means “the person who creates it”.9 It might be said that the latter definition appears to beg the question as to what is meant by “creates”; on the other hand, it provides courts with some useful flexibility in determining just what constitutes authorship in any given case, as well as underlining that authorship is concerned with the act of making (creating) a work or bringing it into existence. In the absence of such a definition, Australian and Singapore courts may have even greater room for manoeuvre in deciding new cases of claimed authorship as they arise, but the lack of statutory guidance means that this is a journey through uncharted waters with no markers of where authorship fades into non-authorship (and no protection). This, in turn, invites a number of further inquiries:

(a) What guidance is there to be found in the international obligations that apply to Australia and Singapore with respect to the protection of works of authorship? The obvious point of reference here is the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) 1886, as revised, and as incorporated in our respective World Trade Organization commitments under the annexed Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”). As will be seen below, the Berne Convention

provides some boundaries, but is quite open-ended on a number of other areas; furthermore, while it supplies some outer limits, it says relatively little as to what falls within those limits.

(b) Given the space for national solutions within these international parameters, how have the Australian and Singapore courts and legislators approached these questions? The central issue here, of course, is the threshold standard of originality that is to be applied in order to gain protection, and which has primarily been a matter for judicial consideration at the national level.

(c) What further issues remain unresolved or, perhaps, as yet untested?

5 The first of these questions has been addressed at some length by the present author elsewhere,10 and therefore needs only to be touched on lightly here. The second question, too, has been the subject of detailed consideration by several of the other contributors to this special issue and it will therefore not be covered here again, other than to make some more general observations touching on recent developments in Australia. The third question, however, gives rise to a series of further intriguing inquiries that will form the major part of this contribution, and which also provides some of the larger “back story” that underlies discussion of standards of originality. As noted above, these further questions have practical implications for contemporary copyright law and practice.

III. Guidance from above – The Berne Convention for the Protection of Literary and Artistic Works

6 One searches in vain for precise guidance on any of these matters in the Berne Convention, although it is obviously a convention about authors and their works, as the opening words of the preamble make clear: “The countries of the Union, being equally animated by the desire to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works”. However, while authors and their rights are the subject of the Berne Convention, the term “author” itself is undefined. Nonetheless, it is clear that there is a direct link between authors and their “works”, and there is a series of quite detailed provisions specifying what subject matter are to be protected as “literary and artistic works”. These begin with Article 2(1),

which contains the following general definition that has remained relatively unchanged since the revision by the Berlin Act of 1908:

The expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

7 The boundaries set out here as to what is to be protected are broad but appear distinct at the outer limits, namely, that literary and artistic works are “productions in the literary, scientific and artistic domain”. While the adjective “scientific” is somewhat mysterious, it seems that it was not intended by the initial drafters of the Berne Convention to extend to such things as inventions and discoveries – the province of patents – but was used rather as a description to capture works relating to scientific matters or of a scientific character (as in the listed examples of “illustrations...