In recent years, there has been growing controversy surrounding copyright infringement and music downloading from peer-to-peer networks such as Kazaa, Bittorrent and Napster. In this technological age, increasingly difficult challenges are posed to copyright law as a result of the ease with which information is transmitted across the Internet.
It is suggested that global uniformity in relation to copyright laws is required to keep in line with the technological advances to date and in future years. One step towards harmonisation was achieved through the conclusion of the World Intellectual Property Organization Copyright Treaty (“WCT”). The World Intellectual Property Organisation (“WIPO”) is a United Nations agency responsible for developing an “accessible international intellectual property system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest.” The WCT sought to revise the Berne Convention for the Protection of Literary and Artistic Works 1886 (“Berne Convention”), which recognised copyright protection based on the principles of national treatment, automatic protection and independence of protection. The WCT was a response to the challenges of digital technology and its dissemination over the Internet. In particular, the WCT granted authors the right to transmit their works through Article 8, which states that:
Authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.
As well as recognising the rights of creators to authorise communication, Article 8 also acknowledged the ability of members of the public to access these works at any time. Despite providing the foundations for global harmonisation, the WCT is also seen as being wide enough it its interpretation to allow national legislatures to enact based on what they perceived as being relevant or appropriate to their respective jurisdictions.
In Australia, the Copyright Act 1968 (Cth) governs copyright protection for certain items such as musical, literary and artistry works. This Act was recently amended by the Copyright Amendment (Digital Agenda) Act 2000 (Cth). Despite the fact that Australia has not acceded to the WCT, the amendments were enacted to incorporate some of the provisions of the WCT. The objectives of the Act are:
To improve the protection for owners of copyright in relation to the use of their copyright material on the Internet and through other new communications technologies, such as pay-TV, in order to reward creative endeavours and encourage further creative endeavours.
The Amendment Act introduced an exclusive right for creators of literary, dramatic, musical and artistic works to “communicate the work to the public”. There is arguably ambiguity in relation to this right, and what it means for Australian law. Furthermore, in “The New Right of Communication in Australia”, Christie and Dias argue that Article 8, as replicated in the Copyright Act, gives rise to an extraterritorial effect which will have ‘significant ramifications for Australian copyright law in the future.’
As a result, the guidance provided on an international level by the WCT does not necessarily achieve consistency or uniformity globally, due to the wording and lack of detail in the Treaty which ultimately results in varying interpretations by national legislatures.