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J.A.L. STERLING
Middle Temple, Barrister;
Senior Visiting Fellow, Queen Mary and Westfield College
University of London
Crown prerogative and Crown statutory rights
Until the coming into force of the U.K. Copyright Act 1911, the Crown's rights to authorise printing and publishing were based on
(1) the prerogative rights, as regards certain material;
(2) copyright or other statutory right arising from the general provisions then in force, which did not establish any separate right for the Crown in this regard.[2]
(1) The rights or privileges of the Crown were preserved. Consequently, in so far as the Crown enjoyed on 1 July 1912 a prerogative regarding the licensing of printing or publishing of a certain work or class of works, that prerogative continued. The difficulty arises in defining the particular works in which the prerogative subsisted. The prerogative as regards the Authorised Version of the Bible continued (see above). As regards Statutes, the question was considered extensively in Attorney-General for New South Wales v. Butterworth (Australia) Ltd.[3]: the hearing lasted some 26 days and the relevant cases back to the earliest decisions on the prerogative were examined: it was held that the Crown, on the basis of the prerogative, had the sole right of printing the N.S.W. Statutes. Long Innes C.J. in Eq., in holding that, in the action to prevent the unauthorised printing of the N.S.W. Statutes, the Attorney-General was entitled to succeed on the prerogative, stated that in his view, if the Attorney-General had not succeeded on the prerogative, he would have been entitled to succeed, although to a limited extent, on the Statute (i.e. on the subsistence of a right under section 18 of the U.K. 1911 Act, which was then in force in Australia). [4]
(2) The precise ambit of the "direction or control of His Majesty or any Government department" was not defined, but the Treasury Minutes of 1887 and 1912, dealing with Crown copyright, included Acts of Parliament in the list of affected material (with Parliamentary papers, certain Government publications, Ordnance maps etc.). However it is not clear in each case whether inclusion is on the basis of prerogative or the provisions of section 18.[5]
(3) The author could retain copyright by contract.
(4) The copyright belonging to His Majesty by virtue of section 18 continued for 50 years from first publication. This may be contrasted with the prerogative right, which apparently continues indefinitely, and is not, it is said, lost through non-use. It may be argued that where the Crown obtained copyright under section 18 in respect of a class of work which was subject to the prerogative, that Parliament intended that 50 year period would apply. What, then, was the position of an Act first published in, say, 1914? If duration was to be determined by section 18, the Crown copyright would have expired in 1964: if it did not, then the prerogative right would continue until otherwise provided by Act of Parliament. However that may be, the Act would now be out of copyright by virtue of the present legislation.[6]
Section 46(2) provided that nothing in the Act affected "any right or privilege of the Crown subsisting otherwise than by virtue of an enactment" (s.46(2)). Thus the prerogative rights of the Crown were preserved.
Section 39 contained special provisions providing that Her Majesty is entitled the copyright in certain cases (such copyright being known as "Crown copyright").
Section 39(1) provided that in the case of every original literary, dramatic, musical or artistic work made by or under the direction or control of Her Majesty or a Government department, Her Majesty was entitled to the copyright in the work, even if copyright would not otherwise subsist in the work (e.g. because the work was unpublished, and the author was not a qualified person (ss.12(5), 31, 32)). Furthermore, Her Majesty was entitled to the copyright in works first published in the U.K. (or an extension country), if first published by or under the direction or control of Her Majesty or a Government department (s.39(2)). Crown copyright also subsisted in the case of sound recordings or cinematograph films made by or under the direction or control of Her Majesty or a Government department (s.39(5)). Other arrangements as to the ownership of the copyright could be made with the author (or maker of the recording or film) (s.39(6)).
The 1988 legislation retained the concept of Crown copyright, but changed the criteria from "direction or control" and "first publication" to "works made in the course of duties".
Copyright, Designs and Patents Act 1988
Crown copyright under section 163 subsists
(a) for 125 years from the end of the year in which the work was made, or
(b) if the work is published commercially within 75 years after the end of the year in which it was made, then protection lasts for 50 years from the end of the year in which it was published (s.163(3)).
Crown copyright in Acts subsists from Royal Assent for 50 years from the end of the year in which Royal Assent was given (s.164(2)).
The provisions concerning duration of Crown copyright in existing works (i.e. those made before 1 August 1989) are contained in the First Schedule to the Act, paragraphs 40-42. Since paragraph 42(1) applies to existing Acts of Parliament, it seems that in such cases the Crown's copyright expires 50 years after the year of Royal Assent.
Under Council Directive 93/98, on duration of copyright and related rights, Member States of the European Union are, as from 1 July, 1995, obliged to grant a general term of protection of 70 years p.m.a (Art.1(1)). However, the European Commission's Explanatory Memorandum indicates that the Directive does not harmonise terms of protection of laws etc. (i.e. the Directive does not apply to the U.K. Crown copyright provisions).[9]
Section 79(7) provides that the identification right does not apply (inter alia) to a work in which Crown copyright subsists, unless the author or director has previously been identified as such on published copies of the work. Acts of Parliament are not usually published with any reference to authorship, as distinct from copyright ownership. Quaere, the position as to Government reports where the authors are indicated (e.g. Commission Reports).
With regard to the integrity right, section 82(2) provides that, as regards (inter alia) works in which Crown copyright subsists, the right does not apply to anything done in relation to such a work by or with the authority of the copyright owner unless the author or director (a) is identified at the time of the relevant act, and (b) has previously been identified in or on published copies of the work; and where in such a case the right does apply, it is not infringed if there is a sufficient disclaimer (i.e. that the work has been subjected to treatment to which the author or director has not consented (s.178)).
It is, therefore, clear that there can be circumstances in which the identification and integrity rights can be exercised in respect of Crown copyright works. A Crown officer or servant may be the author of a work, though the ownership of the copyright in the work belongs to the Crown. Section 2(2) provides that the identification and integrity rights applies whether or not the author is the owner of the copyright. Where "ordinary" copyright subsists, the author will enjoy the moral rights, with the various limitations, but not those of sections 79(7) and 82(2).
Some difficult questions arise in connection with the use of scanning equipment. Does scanning (as distinct from photographing) a printed page amount to copying the typographical arrangement of that page? Where scanning enables a facsimile of the printed page to be produced, it is thought that infringement of the "edition" copyright would occur (unless the operation is authorised).
1) The prime information source for the public is the "Dear Publisher" letter: this sets out the general guidelines governing the commercial reproduction of Crown and Parliamentary material.[12]
2) The "Dear Librarian" letter, dealing mainly with "non-commercial" photocopying (in course of revision).
3) The "Dear Establishment Officer", letter, primarily intended as guidance for Government departments and Crown bodies (previously issued as a General Notice, the last of the series being number 90/23); this letter is also in course of revision.
Section 165(1) provides that where a work is made under the direction or control of the House of Commons or the House of Lords, the work qualifies for copyright protection, and the House by whom, or under whose direction or control, the work is made is the first owner of any copyright in the work (joint ownership if both Houses involved): this is "Parliamentary copyright". Such works include (a) any work made by an officer or employee of the respective House in the course of his duties, and (b) any sound recording, film, live broadcast or live cable programme of the proceedings of the House (with an exception regarding commissioned works) (s.165(4)).
Section 166(7) provides that no other copyright, or right in the nature of copyright, subsists in a Bill after copyright has once subsisted under section 166 (saving regarding re-introduced Bills).
Section 167 contains interesting provisions as to the operation of these provisions: each House of Parliament is treated as having the legal capacities of a body corporate, which is not affected by prorogation or dissolution (s.167(1)). The copyright ownership functions are in general exercised respectively by the Speaker of the House of Commons and the Clerk of the Parliaments.
It would also seem that the author of a private Member's Bill will lose the "ordinary" copyright in the text of the Bill once it is first deposited in either House (s.166(3)).
Before the Bill is first deposited in either House, the author will, it would seem, enjoy "ordinary" copyright and moral rights with the respective conditions. After deposit in either House, the "ordinary" copyright is apparently extinguished, to be replaced by Parliamentary copyright. The "ordinary" copyright does not, apparently, revive after the lapse of the Parliamentary copyright (s.166(7)).
In the 17th Century, prerogative rights of printing and publishing judgments were exercised by the Crown.[14] Later, the prerogative was not exercised, and Judges licensed the printing of judgments, but this practice was discontinued, so that were was in general no control over such printing until the establishment of the Council of Law Reporting in 1864.
Despite the fact that the Crown has not exercised the prerogative in modern times, some writers consider that the prerogative continues, or that at least, a strong argument can be made for this proposition.[15] On the other hand, other writers consider that the prerogative to print judgments is defunct.[16] On balance, it is thought that the prerogative could be held to continue, though not exercised. The mere fact that the prerogative right is, as it were, overlaid by a statutory right, so that, while the statutory right subsists, the prerogative is not exercised, may not, of itself and without more, mean that the prerogative is abolished.
If the conclusion were that judgments are not protected under the 1988 Act by Crown or "ordinary" copyright, then the prerogative might apply: however, it seems clear that judgments are protected under the 1988 Act.
Some writers consider that Judges are (or are probably) officers of the Crown.[17] Other writers consider that Judges are not officers or servants of the Crown.[18] Two situations should therefore be considered:
Alternative 1: Judges are officers of the Crown: in this event, Crown copyright will subsist in judgments (if written or otherwise recorded), and the Judge will have no separate copyright in the judgment (s.163(1)(b)).
Alternative 2: Judges are not officers or servants of the Crown: in this event, the Judge will be the first owner of the copyright in the judgment (if written or otherwise recorded): this will be "ordinary" copyright.
Whatever the situation as regards ownership of copyright, the 1988 Act contains an important provision regarding reporting of judicial (and parliamentary) proceedings: section 45(2) provides that copyright is not infringed by anything done for the purposes of reporting such proceedings (but this is not to be construed as authorising the copying of a work which is itself a published report of the proceedings). Section 45(2) thus implies, it is thought, that (assuming judgments are part of "judicial proceedings") there is copyright in judgments, but this copyright is not infringed by the taking down and publishing of reports.[19]
HMSO seeks to license reproduction of officially published reports of judgments, rather than the judgments themselves.
If the Crown is the initial owner of the copyright in the judgment, by virtue of section 163(1), the Judge will have
(a) the moral right of identification, subject to fulfilment of the conditions normally applying, including assertion, plus the limitation applying in the case (inter alia) of Crown copyright, concerning identification on published copies (s.79(7));
(b) the integrity right, subject to fulfilment of the conditions normally applying, plus the special conditions of section 82 concerning (inter alia) Crown copyright.
If the Judge is the initial owner of the copyright in the judgment, he or she will have the attendant moral rights, subject to the normal conditions.
In any event, these moral rights cannot be exercised as regards acts which took place before 1 August 1989.[21]
It may be noted that all persons, whether or not they are authors, have the right not to have works falsely attributed to them (s.84). This will apply whatever the copyright status of the falsely attributed judgment: this right continues until 20 years after the death of the person to whom the work has been falsely attributed (s.86(2)).
A clear distinction must be drawn between (a) copyright in the judgment as a literary work, and (b) copyright in the report of the judgment, where such report is classified as a literary work distinct from the work constituted by the judgment itself. The position as to copyright under (a) has been considered above. The position as to copyright under (b) must be assessed separately in accordance with the various possibilities, which include the cases outlined below.
The threshold question is whether the Crown has any prerogative right regarding the printing of the report of the judgment. The following analysis is on the basis that either the prerogative does not exist, or that, if it does exist, it is (while the situation is covered by statute) "overlaid" by the provisions of the 1988 Act.
A separate copyright may subsist in the report, as distinct from the judgment as a work, entitling the holder of the "report copyright" to authorise printing of the report of the judgment.[22]
(1) a shorthand writer present in Court, using skill and labour, makes a shorthand report of the judgment: It is thought that, where appreciable skill and labour are employed, copyright will subsist in the report.[23] The initial owner of the copyright will be the shorthand writer, or his or her employer (s.11(2)), or, if the writer is an officer or servant of the Crown performing his or her duties, the Crown (s.163(1)). The making of the shorthand report will effect the coming into existence of copyright in the judgment as a literary work (since copyright does not subsist unless and until the work is recorded in writing, or otherwise: see section 3(2)(3)).
Two further comments may be made on the position of the shorthand reporter:
(a) If a shorthand report of Court proceedings enjoys copyright because of the invested skill and labour, it seems logical that where a stenographer uses equivalent skill and labour to take down dictation (say, as a secretary) copyright should subsist in the shorthand text: this copyright will normally belong to the employer (s.11(2)).[24]
(b) Where the shorthand reporter uses a shorthand machine, it will be a question of fact whether sufficient skill and labour are involved to justify copyright protection. The same applies where a manual typewriter is used to take down the judgment.
(2) a tape recording is made of the Judge's words in pronouncing judgment : Copyright will subsist in the tape recording, even if it is made without using skill and labour (ss.1(1)(b), (5)): the initial owner of the copyright will be the person by whom the arrangements necessary for the making of the recording are undertaken (s.9(2)(a)). Note that the "employer copyright" provisions of section 11(2) do not apply to sound recordings, and that the general rule that the author of a work (in this case the person making the recording arrangements) as the first owner of the copyright in it do not apply in the case of Crown copyright (s.11(1)(2)(3)): accordingly, the ownership of the copyright in the recording where the person making the recording arrangements is an employee (but not a Crown officer or servant) will be a matter of contract (express or implied) between the employer and the employee.
If both the shorthand report and a tape recording are made simultaneously, separate copyrights will subsist in them, as above.
The making of the tape recording (in the absence of a shorthand report) will also effect the coming into existence of copyright in the judgment as a literary work (s.3(2)(3)).
The writing out of the judgment by the Judge will effect the coming into existence of copyright in the work constituted by the judgment itself (see above). Copyright will subsist in the shorthand report or recording as under A. above.
Where the Judge writes out the judgment in longhand, it is thought that no separate copyright will subsist in the written report (as distinct from the judgment) since no special skill is required in this respect. Where the Judge makes a tape recording of the words spoken in pronouncing the judgment, copyright (belonging to the Judge or the Crown, see above) will subsist in the tape recording(as a sound recording, s.1(1)(b)).
When a computerised speech recognition system is used to record the judgment in digital form, permitting printout of the text of the judgment, the recording will doubtless constitute a recording of the judgment, and the question arises whether a separate copyright can subsist in such recording:
(1) if sound playback is not possible, then the recording will constitute a mere record of the judgment, and, as such, be protected by the "judgment" copyright. Possibly it could be argued that the recording in addition constitutes a computer-generated literary work, entitled to separate copyright (s.9(3));
(2) if sound playback is possible, then copyright will subsist in the record of the spoken words as a sound recording, in addition to the protection of the record as a copy of the judgment.
Three situations must be distinguished: (1) protection in the U.K. of
statutory material of other Commonwealth countries; (2) protection in any
particular Commonwealth country (other than the U.K.) of statutory material of
the U.K. or other Commonwealth countries; (3) protection in any particular
Commonwealth country (other than the U.K.) of statutory material originating in
that country.
The following listing deals only with the position under (3) above.[25] Where legislation is listed as the same as or similar to that under the U.K. 1956 Act, it should be noted that the following differences are among those which may occur in the local provisions:
(1) The copyright owner of "Government" works may be defined as "the Government" or "the State" etc., rather than "Her Majesty" or "the Crown".
(2) In some cases the criterion is only "making by or under the direction or control of the Government" and the "publication by the Government" criterion is not included.
(3) The first owner of the copyright is often defined as "the Government" but in some cases, Government initial ownership is not specified: in these cases, the first owner of the copyright may be the author, or, by virtue of the provisions on commissioned and employees' works, the Government.
(4) In some cases, "literary works" are defined to exclude written laws, law reports and judicial decisions: in these cases, the excluded categories are apparently not protected by copyright.
For countries marked with an asterisk, see Notes following the listing.
(1) Position same or similar to that under U.K. Copyright Act 1911
(a) By virtue of continued application of 1911 Act: Antigua and Barbuda, Channel Islands, Dominica, Gambia, Kiribati, St. Kitts-Nevis, Swaziland, Tuvalu.
(b) By virtue of local legislation: Canada*.
(2) Position same as or similar to that under U.K. Copyright Act 1956
(a) By virtue of continued application of 1956 Act: Bahamas, Belize, Fiji, Grenada, Guyana, Nauru*, St. Lucia, St Vincent and the Grenadines.
(b) By virtue of local legislation: Australia*, Bangladesh*, Botswana*, Cyprus*, Ghana*, India*, Kenya*, Malaysia*, Malta*, Nigeria*, Pakistan*, Seychelles*, Sierra Leone*, Solomon Islands*, South Africa*, Tanzania*, Trinidad and Tobago*, Uganda*, Zambia*, Zimbabwe*.
(3) Position same as or similar to that under U.K. Copyright, Designs and Patents Act 1988
Isle of Man*.
(4) Position different from that under U.K. Acts of 1911, 1956 and 1988
Barbados*, Jamaica*, Lesotho*, Malawi*, Mauritius*, New Zealand*, Sri Lanka*, Tonga*.
As regards colonies, the position will generally be governed by the provisions of the 1956 Act or the 1988 Act, according to which is in force in the respective territory: see the Orders in Council made under section 31 of the 1956 Act, and section 157 of the 1988 Act, and local implementing provisions in each case; see also Sched.1, paras. 36-37, and Orders made thereunder.
On 27 August 1993 the Attorney-General for New South Wales published a notice authorising any publisher to publish and otherwise deal with any legislation of New South Wales, subject to the following conditions:
(a) copyright in the legislation of New South Wales continues to reside in the State;
(b) the State reserves the right to revoke, vary or withdraw the authorisation, on breach, or on reasonable notice;
(c) publication of material pursuant to the authorisation must not indicate that it is the official version;
(d) the arms of the State must not be used without authority;
(e) the publication must be accurately reproduced in proper context and be of an appropriate standard.
The authorisation covers publication of the legislation of New South Wales in electronic form (including by way of disk, tape or on-line access).[26]
(1) Crown copyright subsists in a work made by a person employed or engaged by the Crown under a contract of service, a contract of apprenticeship, or a contract for services: duration, 100 years from the end of the year in which the work was made (25 years for typographical arrangement) (s.26(1)(3)).
(2) No copyright subsists in any of the following works whenever those works were made: Bills introduced into the House of Representatives, Acts of Parliament, regulations, bylaws, New Zealand Parliamentary debates, House of Representatives select committee reports, judgments of any court or tribunal, reports of Royal Commissions and certain other official reports (s.27). However, it is understood that these provisions will only come into effect at a future date, providing a transition period for existing arrangements.
Broadly speaking, it can be said that texts of laws, official reports and judgments are excluded from protection under the author's right laws of the EU Continental States.
Under the German Author's Right Law 1965, laws, orders, government reports and decisions are excluded from protection (art.5): there are similar provisions in the Austrian Author's Right Law 1936, art.8. There are no specific provisions in the French Code on Intellectual Property 1992, but jurisprudence and practice exclude protection for statutory and official material, and judgments.[27] There are, however, local variations, e.g. the Swedish Author's Right Law 1960 has, in regard to official maps, an exception to the general rule of exclusion (art.9).
In some cases the laws make reference to foreign material or translations. The Italian Author's Right Law 1942 excludes from protection "official acts of the State and of the public administrations, whether Italian or foreign" (art.5). The Spanish Intellectual Property Law 1987 excludes from protection statutory and official material, and judgments, as well as official translations of these texts (art.13).
If the local law does not make specific reference to foreign official material, the question arises as to whether such material is protected in the respective EU States, all of which are members of the Berne Union.
The Berne Convention (1971 text) provides certain minimum rights for all protected authors: the rights include the right of reproduction (Art.9), and the protected authors are those who are nationals of one of the countries of the Union, or authors who are not Union nationals, in respect of works first published in a Union country (Art.3(1)).
Article 2(4) permits Union countries to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts. Masouyé reads this as covering "laws, administrative regulations and decisions of courts and tribunals".[28]
Certainly, then, a Berne Union country may specifically exclude from protection material of the type in which Crown copyright subsists. It is, however, thought that Union countries are bound to protect the authors of Crown copyright material, who qualify under Article 3(1), unless specific exclusion has been enacted, or unless the jurisprudence of the country concerned excludes foreign material in this connection. The mere fact that the initial owner of the copyright (i.e. the Crown) is not the person defined as the author in the country where the claim is made is not determinative: the definition of "author" will be decided according to the lex fori.[29]
If a particular EU country it transpires that the exclusion of official material from protection does not apply to foreign originated material, then the EU author of the material will be able to claim the extended period of protection (70 years p.m.a.) provided under EC Directive 93/98.[30]
Questions concerning the subsistence of copyright in official material are of particular relevance in the electronic context: see IV 3 below.
In the U.S., judgments are regarded as being in the public domain. On the one hand, there is the question whether works of the U.S. Government are protected in other countries.[32] On the other hand, there is the question of the protection of foreign Governments' works in the U.S. As far as Crown copyright material is concerned, it would seem that the authors thereof are entitled to protection under the U.S. 1976 Act, at least in so far as they are Berne Union nationals, or the work is first published in a Berne Union country.
By a similar argument such authors of Crown copyright works will be protected in other countries of the Berne Union, unless excluded under the respective national law. Again, the question is likely to be of importance in the electronic context.
Finally, a decision needs to be made as regards the protection of Crown copyright as between one "Crown copyright" country and another such country. Since, for example, the Crown is the owner of Crown copyright arising in Canada, can the Crown claim to be the owner of such copyright in the U.K.? If not, who could claim such copyright? These questions await resolution.
The examples taken are the statutes of the legislatures of Germany and the United States. Both these States are parties to the Berne Convention (1971) and both have laws excluding statutes from copyright/author's right protection. Is it lawful to reproduce these statutes commercially in the U.K., without any authorisation? Authors of German and U.S. nationality are protected under the 1988 Act, as are works first published in those countries.[33]
There is no provision in the 1988 Act excluding foreign official material from protection. It would therefore seem that if a particular foreign work would be protected in the U.K. by reason of the nationality of its author or place of publication, then that work would be protected in the U.K., even if, in its country of origin, it is in the public domain because it is a statute, official text, judgment etc. (unless the argument that "zero protection" in the country of origin excludes the claim is accepted).
Digitisation is a means of representing works, performances and productions in a particular electronic form (based on 0-1, on/off etc. patterns) which can be recorded, transmitted and manipulated in ways and to an extent previously unknown.
It is submitted that, in terms of the Berne Convention (1971 text) the acts of exploitation of works and other material by digitisation are to be classified as follows:
(1) The act of rendition in representative digital form is a copying (reproduction) of the digitised work, performance or production.
(2) The act of recording in representative digital form is a copying (fixation or reproduction) of the digitised work, performance or production.
(3) The act of transmission in representative digital form is a dissemination of the digitised work, performance or production.
(4) The act of manifestation by means of the representative digital form is a copying (reproduction) or performance of the digitised work, performance or production.
It is also submitted that, in order to ensure effective protection, the work or other material which has been digitised and the signal or recording incorporating the representative digital form should be separately protected by exclusive rights to authorise rendition, recording, transmission or manifestation of the work or signal. Thus a "double protection" (already familiar in the case of works and sound recordings, see above IV B (1)) should be established, in so far as it does not already exist, so that, in addition to the protection of the work,
(1) the unrecorded rendition into digital form is separately protected as a subject-matter-carrying-signal;
(2) the recording of the digital rendition is separately protected;
(3) the transmitted signal incorporating the representative digital form is separately protected;
(4) the manifestation by means of the representative digital signal is separately protected.
As to 1: the concept of signal protection is already familiar in international law: cf. the Convention Relating to the Distribution of Programme-Carrying-Signals Transmitted by Satellite, Brussels 1974.
As to 2 and 3: the protection of recordings and broadcast transmissions is recognised in the Convention for the Protection of Performers, Phonogram Producers and Broadcasting Organisations, Rome 1961. The protection should be extended to cover all access to protected material in digital form.
As to 4: manifestation normally occurs, in the digital context, through playback or screen display: these manifestations should be independently protected.
In recent years there has been considerable debate as to the definition of the place of communication in the case of broadcasts received in more than one country. The "emission" theory decides the question on (broadly) the place of emission: the communication theory (based on the proposals of Dr. Bogsch, Director General of WIPO) requires the rightowner in the country of reception, as well as the country of emission, to be taken into consideration. While as regards EU originated broadcasts, EU Directive 93/83 on satellite broadcasting and cable retransmission adopts a solution similar to the emission theory, the French and Austrian courts have applied the communication theory (and may continue to do so, as regards non-EU originated broadcasts).[35]
In the context of internationally linked database services, where it may not be possible to identify the place of emission, it is difficult to see how the emission theory can be applied; the rightowner will need protection through the communication theory.
It is in general illegal to use an unidentified vehicle on the automobile highway. Similarly, it may be necessary to adopt national and international rules making it illegal to place an unidentified signal on the information super-highway, if effective protection of the originators of the transmitted material is to be achieved.
With the increasing use of word processors and other computing facilities by originators of works and other protected material, the originator will in many instances become the owner of the right in the initial signal, conversion, copying or transmission of which should, if unauthorised, itself be an infringement.
In relation to Crown copyright material, HMSO has licensing systems covering electronic use of protected material, as on CD-ROM or in subscriber databases. In common with other copyright owners, however, the Crown will need to obtain protection in respect of the use of copyright material outside the U.K., as where, for instance, material is incorporated in a foreign database and accessed in the U.K. Thus the question of international subsistence of copyright protection becomes of paramount importance.
(1) copyright in the material itself (i.e., in the Act, Bill, Parliamentary paper, Government document, etc.);
(2) copyright in the report of judicial or parliamentary proceedings (including copyright in reports of judgments);
(3) copyright in the typographical arrangement of published editions.
In addition, there may be a separate literary copyright in headnotes, summaries, case comments etc.[36]
Even where the use of material under (1) above is permitted, the prospective user must take into account the "report" copyright (if such is held to exist), and the "edition" copyright. There is the further complication that material of foreign origin may be protected under these headings. It is, therefore, not only as regards Crown copyright that there may be constraints on the use of material within the ambit of such copyright.
There is also the aspect that statutory, Governmental and judicial material may now be exploited through internationally linked database services.
It is submitted that all creative work in the literary, dramatic, musical and artistic fields should be protected by copyright, irrespective of the nationality of the author or place of publication of the production. Discriminatory protection should no longer be acceptable in national or international law. French and German law on author's right already accept this principle as regards moral rights, and U.S. law accepts it as regards unpublished works.[37] Systems can be devised to ensure that, while recognising the principle of non-discriminatory protection against unauthorised use, payment of royalties to countries where rights are not adequately protection is subject to control.
The composition of Acts of Parliament, Bills and judgments will normally involve an original or creative input, and the same applies to many items of Government publications; it is submitted that, from the copyright point of view, there is no sound reason for discriminating against these and similar official or judicial productions by removing them from the ambit of protection. On the other hand, it is undoubtedly in the public interest that the citizen should, with the least possible hindrance, be able to ascertain the content of his or her country's laws, Government documents, judgments and judicial pronouncements.
It is for each country to decide whether these principles should be accepted, and, if so, how they should be reconciled. In the context of Crown and other copyright material in cyberspace, it is submitted that four aspects need particular consideration:
1. The necessity for clarity in the legal situation: this involves the establishment of definitions and tests to be applied in assessing subsistence and infringement of copyright in relation to digitisation and national and international electronic transmission of digitised material.
2. Specification of the parameters of exception to copyright protection in respect of digitisation or electronic transmission of digitised material.
3. The institution of international identification and metering procedures covering use of protected material in nationally and internationally linked database services
4. The establishment of clearance procedures in regard to local and foreign material
As far as the user is concerned, difficulties may arise in ascertaining the status of material of foreign origin, and in the obtaining of the necessary permission where this is protected. At present the writer of a legal textbook on comparative law, to be published in the U.K., must, if foreign laws and judgments etc. are to be quoted in substantial measure without risk of infringement, ascertain from the respective foreign authorities (or otherwise) the position as to permitted reproduction. It is suggested that such a situation is not in the public interest, where it results in impediments to the dissemination of knowledge of the law. There should be clear rules as to the permitted reproduction of quotations from local and foreign material.
The situation as to protection of official material varies from country to country: in some countries, statutes and reports of judgments are "free", in others they are not: sometimes certain categories of Government material are protected in one country, but not in another. In the cyberspace age national copyright boundaries become illusory, and the need for international harmonisation on the rules of protection is urgent. International protection of official material is only one aspect of the challenges facing the traditional concepts of copyright. The solutions which might be adopted to deal with the relatively limited field of official material may provide the pattern, or at least the starting point, for dealing with the problems of cyberspace on a comprehensive basis.