Schott Musik International GmbH & Co v Colossal Records of Australia Pty Ltd
[1997] FCA 531
•19 JUNE 1997
CATCHWORDS
COPYRIGHT - whether remixed tracks of a musical work which represent a record of an adaptation of that work for the purpose of s 55(1) of the Copyright Act 1968 (Cth) “debase” the work within the meaning of s 55(2) and thus infringe copyright in that work - consideration of the legislative history and statutory context of s 55(2)
Words and Phrases: “debase”
Copyright Act 1968 (Cth); ss 10(1), 13, 14(1), 31(1), 36(1), 37, 38, 39, 55(1), (2) and (4)
Federal Commissioner of Taxation v Murray (1990) 92 ALR 671, referred to
George Hensher Limited v Restawhile Upholstery Lanes Limited [1975] RPC 31, referred to
CIC Insurance Limited v Bankstown Football Club Limited (1977) 141 ALR 618, applied
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, applied
Saraswati v The Queen (1991) 172 CLR 1, applied
Luther R Campbell v Acuff-Rose Music Inc (1994) 127 L Ed 2d 500 (U.S. Supreme Court), distinguished
SCHOTT MUSIK INTERNATIONAL GMBH & CO & ORS v COLOSSAL RECORDS OF AUSTRALIA PTY LIMITED & ORS
NG 990 of 1996
WILCOX, HILL & LINDGREN JJ
SYDNEY
19 JUNE 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 990 of 1996 ) GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: SCHOTT MUSIK INTERNATIONAL GMBH & CO
First AppellantBOOSEY & HAWKES (AUSTRALIA) PTY LIMITED
Second AppellantAUSTRALASIAN MECHANICAL COPYRIGHT OWNERS SOCIETY LIMITED
Third AppellantAND: COLOSSAL RECORDS OF AUSTRALIA PTY LIMITED
First RespondentDOMINICO LOPRETE
Second RespondentSALVATORE LOPRETE
Third RespondentCORAM: WILCOX, HILL & LINDGREN JJ PLACE: SYDNEY DATED: 19 JUNE 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed.
The appellants pay the respondents’ costs of the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG990 of 1997 ) GENERAL DIVISION )
BETWEEN: SCHOTT MUSIK INTERNATIONAL GMBH & CO
First AppellantBOOSEY & HAWKES (AUSTRALIA) PTY LIMITED (ACN 000 0027 467)
Second AppellantAUSTRALASIAN MECHANICAL COPYRIGHT OWNERS SOCIETY LIMITED (ACN 001 678 851)
Third AppellantAND: COLOSSAL RECORDS OF AUSTRALIA PTY LIMITED (ACN 005 531 699
First RespondentDOMINICO LOPRETE
Second RespondentSALVATORE LOPRETE
Third RespondentCORAM: WILCOX, HILL AND LINDGREN JJ PLACE: SYDNEY DATED: 19 JUNE 1997
REASONS FOR JUDGMENT
WILCOX J: I have read in draft form the judgment of Hill J. The judgment contains summaries of the facts of the case, the relevant legislation and the legislative history. I need not repeat that material.
I agree with the orders proposed by Hill J but, regrettably, not his reasons. My regret extends beyond mere politeness; from the Court’s point of view, there are advantages in Hill J’s approach. If the operation of s 55(2) of the Copyright Act 1968 is limited to cases where the adaptation causes a reasonable person to think less of the original work, as Hill J suggests, its application will be relatively easy. I am not sure this approach would wholly relieve the Court from involvement in artistic censorship or matters of taste, as Hill J suggests. If it was claimed that an adaptation debased an original work because it constituted a parody, or because it included material having a repugnant association, for example, with a person or an organisation widely regarded as abhorrent, the Court would be required to make a judgment of degree involving a measure of subjectivity. However, I agree that the task would be less difficult and invidious than that which the trial judge was invited to undertake.
As Hill J observes, on any view s 55(2) contains a measure of ellipsis. No adaptation of a work can reduce the value or quality of the original; those elements depend upon the original work’s intrinsic merits. So it must be assumed that Parliament did not really intend the operation of s 55(2) to hinge upon a reduction in the value or quality of the original work. This leaves two possibilities, as it seems to me. The first possibility is that favoured by Hill J: s 55(2) applies where the adaptation has the effect of causing a reasonable person to think less of the original; for example, because of a successful parody or the making of an unpleasant association. The second possibility is something like the submission of the present appellants: an original work is debased if the adaptation is musically inferior. I say “something like” the appellants’ submission because I think it understates what constitutes debasement. Each approach requires consideration of both the original work and the adaptation, but the first approach probably focuses mainly on the original work and the second approach the adaptation.
As a matter of language, it seems to me, both these constructions of s 55(2) are available. The considerations mentioned by Hill J support the adoption of the former construction, but the legislative history suggests that Parliament intended something like the latter.
The earliest legislation applying the concept of a statutory licence to adaptations of musical works was the United Kingdom Copyright Act 1911, which was adopted in Australia, with irrelevant modifications, by the Copyright Act 1912. In the United Kingdom Act, s 19, which concerned statutory licences, was qualified by par (2)(b)(i) which provided that nothing in the section:
“shall authorise any alterations in, or omissions from, the work reproduced, unless contrivances reproducing the work subject to similar alterations and omissions have been previously made by, or with the consent or acquiescence of, the owner of the copyright, or unless such alterations or omissions are reasonably necessary for the adaptation of the work to the contrivances in question”.
The proviso precluded application of the statutory licence to alterations effected on artistic grounds.
The next formula was that contained in the United Kingdom Copyright Act 1956. Section 8(6) of that Act provided some scope for alterations on artistic grounds. It limited the application of the statutory licence provision to adaptations that did not “substantially differ” from the original work “in respect of style or .. the performers required.” It will be noted that, although permissible differences were stringently limited, in determining whether there was a substantial difference in style the Court might have to make a musicological judgment.
The 1967 Australian Bill substantially followed the 1956 United Kingdom provision, with the substitution of “instruments” for “performers”. But the 1968 Bill, which became the present Act, substituted a provision in the form of s 55(2) of the Act. Why the change? In his Second Reading speech on the 1968 Bill, the then Attorney General, Mr N H Bowen QC, did not say. But he made a revealing comment - see House of Representatives Debates, 5 June 1968 at 1961 - when responding to comments made in the Parliamentary debate:
“Another matter that was raised ... was the provision for a compulsory licence in clause 55 ... The difficulty was that once the composer had allowed his work to be put into record form by one manufacturer a second manufacturer might come along and ‘muck up his work,’ to use the honourable member’s words. An attempt has been made to cover that possibility in sub-clause (2) of clause 55. If the production is a debased form of the work it is not covered by the freedom from copyright. There would be a capacity to stop a debased form. That is covered in the Bill.”
In other words, the purpose of clause 55(2) - now s 55(2) - was to exclude from the statutory licence scheme an adaptation that constitutes a “muck up” of the original work. Attention is to be concentrated on the adaptation; Mr Bowen did not suggest it was necessary to show that the adaptation adversely affected the value or quality of the original work, or even its public esteem. It seems that, after a course of gradual relaxation of the limitations on permissible alterations, the Government decided it was no longer appropriate - or, perhaps, too difficult - to specify what variations were permissible; any adaptation was permissible so long as it did not “muck up” the work. Parliament accepted that approach.
Against this background, it seems to me that the appropriate question is not the effect of the adaptation on the original work that constitutes a debasement - that is, a degradation - of it. Unattractive though the prospect is, judges may be forced to consider issues concerning artistic merit and taste. But I do not think they are required to become involved in the type of musical analysis undertaken in this case by Mr Meale. “Debase” is a strong term. It requires much more than an opinion, even an expert opinion, that the adaptation is musically inferior. For the term to be applicable, the adaptation must be so lacking in integrity or quality that it can properly be said to have degraded the original work. It is difficult to think an adaptation that has its own integrity could be so characterised, even if it is musically inferior and however radical or distasteful (to some) it may be.
Tamberlin J summarised his conclusions of principle in seven propositions:
The term ‘debase’ does not call for substantial sameness or even similarity in style, instruments or performance. They are relevant but not conclusive considerations.
The only necessary similarity between the original work and the adaptation is that the latter must be an ‘arrangement’ or ‘adaptation’ of the work.
The term ‘debase’ calls for a value judgment based on a significant lowering in integrity, value, esteem or quality of the work.
Regardless of which view is taken as to the meaning of ‘debase’, there is, of necessity, a question of degree involved in deciding whether a work is ‘debased’ by an adaptation.
As musical tastes are so divergent and varied, ... it is necessary in approaching the question, to pay due regard to that broad spectrum of taste and values. It would be wrong to take a strictly analytical or pedantic view of individual changes made in the adaptation and simply find the sum of those changes to reach a conclusion. Rather, it is necessary to consider the overall impression which it is likely to make on a community with a wide range of tastes and attitudes in relation to adaptations and musical forms.
In forming a conclusion, it is necessary to determine and consider the nature and extent of the variations.
While some guidance can be obtained from ‘expert’ witnesses, the question is largely one of impression and the Court must decide on the evidence placed before it whether the adaptation is so extensive, detrimental or inferior, as a whole that it amounts to debasement.”
Subject to proposition 3 being read in the light of the comments I have made, I respectfully agree with these propositions. Tamberlin J applied them to the facts of the present case and held none of the adaptations complained of by the appellants debased the original work. I respectfully agree. There are numerous differences between each of the adaptations and the original work. Some people may think those differences result in an inferior work; they may even scorn or despise them. But nobody has suggested that any of the adaptations lacks its own integrity or constitutes a mere travesty of the original. The decision of Tamberlin J to dismiss the application was correct.
I agree with Hill J that the appeal should be dismissed with costs.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of the Honourable Justice Wilcox.
Associate:
Date: 19 June 1997
APPEARANCES
Counsel for the Appellants: D K Catterns QC
Solicitors for the Appellants: Banki, Palombi, Haddock &
Fiora
Counsel for the Respondents: A Sullivan QC and A Bowne
Solicitors for the Respondents: Aroni Colman
Date of hearing: 14 May 1997
IN THE FEDERAL COURT OF AUSTRALIA
) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 990 of 1996 ) GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
SCHOTT MUSIK INTERNATIONAL GMBH & CO
First AppellantBOOSEY & HAWKES (AUSTRALIA) PTY LIMITED
Second AppellantAUSTRALASIAN MECHANICAL COPYRIGHT OWNERS SOCIETY LIMITED
Third AppellantAND: COLOSSAL RECORDS OF AUSTRALIA PTY LIMITED
First RespondentDOMINICO LOPRETE
Second RespondentSALVATORE LOPRETE
Third RespondentCORAM: WILCOX, HILL & LINDGREN JJ PLACE: SYDNEY DATED: 19 JUNE 1997
REASONS FOR JUDGMENT
HILL J:
In Federal Commissioner of Taxation v Murray (1990) 92 ALR 671 at 690, I emphasised, in the context of sales tax, that courts were inappropriate fora for the making of aesthetic judgments. In so doing, I echoed the view of Viscount Dilhorne in George Hensher Limited v Restawhile Upholstery Lanes Limited [1975] RPC 31 at 63. In a different context, namely s 55(2) of the Copyright Act 1968 (Cth) (“the Act”), the Court is once again invited to enter the area of aesthetic debate. If legislation requires the Court so to do, then the Court will, reluctantly but with fortitude, carry out the task. The issue for decision in this appeal, however, is whether the Court is required to exercise aesthetic judgment and, if so, the extent to which it is so required.
In 1936 Carl Orff composed “Carmina Burana”. The composition includes the well known “O Fortuna” chorus (“the work”). The first appellant is the owner of the copyright in the work. The second appellant is the exclusive licensee of the copyright in the work in so far as it relates to the right to licence public performances, mechanical reproduction and synchronisation television performances of the work in Australia. The third appellant administers on behalf of its members the statutory licence scheme in s 55(1) of the Act. The respondents have recorded a compact disk known as “Excalibur” containing four remixed tracks of parts of the “O Fortuna” chorus. Each of these tracks is an adaptation, the making of which, subject to the provisions of s 55(2) of the Act, would constitute an infringement of the appellants’ copyright. The remixed tracks adopt the style of what is referred to as “techno music”, particularly favoured at all night dance sessions (“raves”) where loud, pulsating music is played. No distinction is drawn by the parties between any one of the four remixed tracks and any other. It is conceded that if the respondents infringe the appellants’ copyright in respect of any one of those tracks, then they infringe the appellants’ copyright in respect of the others.
It is agreed between the parties that the appellants are entitled to a declaration that the respondents have infringed the copyright in the work by the making of the adaptation and are thus entitled to declarations and consequential relief as claimed, only if, in terms of s 55(2) of the Act, the adaptation is such as to “debase” the work constituted by the “O Fortuna” chorus. The substantial dispute between the parties is as to the meaning of s 55(2) and its application to the present facts.
It is difficult in words to compare the techno adaptation to the original. The ear is a better means of comparison. However, by reference to an analysis prepared by a Mr Meale, an eminent composer and musician, it can be said of the first of the four adaptations that approximately two minutes forty seconds of the total three minutes 52 seconds’ duration is taken from a recording of “O Fortuna”, but the changes made include electronic sounds, transposition, electronic distortion giving a harshness to the choral voices, pumping rhythms, various voices interspersed, including at one stage a voice saying “do the honky stomp, do the honky stomp, do the honky, do the honky, do the honky, do the honky stomp”, piano riffs and a variety of electronic effects. A complete analysis of the first track is, for completeness, attached to the judgment.
THE JUDGMENT APPEALED FROM
The matter came before a judge of the Court (Tamberlin J) to determine whether the techno adaptation debased the original work. Evidence was adduced from experts. These included Mr Meale who was of the view that a techno version of the work would per se be a debasement of the original; Mr Grimshaw, a director of the second applicant with a Diploma in Music, who was of the view that the adaptation was derogatory of and damaging to the reputation of Orff’s music; and Mr Toop, who occupied the Chair of the Musicology Unit of the Sydney Conservatorium of Music. Mr Toop did not believe that any of the techno versions lowered the dignity of the work, although of the view that the original was “kitsch“ and not susceptible to debasement. Evidence was given also by an opera singer, Ms Douglas, by Mr Kerry, a composer in residence with Musica Viva Australia, the Sydney Philharmonia Choirs and Youth Music Australia, and by Mr Pasarnig who operated a retail record store, each of whom expressed views on the issue.
After considering dictionary meanings of the word “debase”, the context and legislative history, his Honour concluded that there had been no debasement. In so doing, his Honour expressed preference for the views of Mr Toop as against those of other witnesses.
The resolution of the issue called, his Honour said, for a broad approach. In reaching his conclusion, his Honour took into account the fact that there was no evidence of any reduction in the value of the copyright in the work, nor any widespread perception of reduction in the quality, rank or dignity of the work as a result of the adaptation. To the contrary, his Honour pointed to some evidence that the adaptation may have stimulated interest in the work. Finally, his Honour noted that the adaptation:
“... preserves substantial and essential elements of the original intact, communicates a powerful exuberance and rhythmic character quite consistent with the character of the work.
It thus did not debase the original.
From this judgment the appellants appeal.
THE STATUTORY CONTEXT
It is clear law that the task of statutory interpretation with which the Court is concerned must be approached by reference to the words used by the legislature in the context in which they appear and having regard to the policy which may be discerned from the provision to be interpreted. The context includes reference to the legislative history: CIC Insurance Limited v Bankstown Football Club Limited (1997) 141 ALR 618 at 634; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-1; Saraswati v The Queen (1991) 172 CLR 1 at 22.
By force of ss 13 and 31 of the Act, copyright, unless the contrary intention appears, is the exclusive right to do one or more of the acts set out in s 31. For present purposes where the relevant work is a musical work, copyright in relation to it is the exclusive right, inter alia, to reproduce it, to perform it or to make an adaptation of it: s 31(1). The reproduction extends not merely to the work but to that which is a substantial part of it: s 14(1). What is an “adaptation” is to found defined in s 10(1). For present purposes, in relation to a musical work, it is an arrangement or transcription of it.
Section 36(1) of the Act has the consequence that there will be an infringement of the copyright in a musical work where a person, not being the owner, does, in Australia, or authorises the doing in Australia, an act comprised in the copyright, that is to say, an act of the kind referred to in s 31. Section 36 is fleshed out by the provisions of ss 37, 38 and 39, dealing, inter alia, with importation and sales.
Without more, the recording of the techno version of the work would constitute an infringement of the copyright in it. However, the provisions of Division 6 of Part III of the Act constitute a departure from the normal statutory scheme, to which reference has just been made. The consequence of the Division is that the making of a record of a work will not constitute an infringement if the provisions of s 55(1) have been complied with. That sub-section provides as follows:
55. (1) Subject to this Division, the copyright in a musical work is not infringed by a person (in this section referred to as ‘the manufacturer’) who makes, in Australia, a record of the work if:
(a)a record of the work:
(i)has previously been made in, or imported into, Australia for the purpose of retail sale and was so made or imported by, or with the licence of, the owner of the copyright in the work;
(ii)has previously been made in Australia for use in making other records for the purpose of retail sale and was so made by, or with the licence of, the owner of the copyright in the work;
(iii)has previously been made in, or imported into, a country other than Australia for the purpose of retail sale, being a country that, at the time of the previous making or importation, was specified in the regulations to be a country in relation to which this Division applies, and was so made or imported by, or with the licence of, the person who was, under the law of that country, the owner of the copyright in the work; or
(iv)has previously been made in a country other than Australia for use in making other records for the purpose of retail sale, being a country that, at the time of the previous making, was specified in the regulations to be a country in relation to which this Division applies, and was so made by, or with the licence of, the person who was, under the law of that country, the owner of the copyright work;
(b)before the making of the record, the prescribed notice of the intended making of the record was given to the owner of the copyright;
(c)the manufacturer intends to sell the record by retail, or to supply it for the purpose of its being sold by retail by a person other than the manufacturer, or intends to use it for making other records that are to be so sold or supplied; and
(d)where the record is so sold or supplied by the manufacturer;
(i)the sale or supply is made with the licence of the owner of the copyright; and
(ii)the prescribed royalty is paid to the owner of the copyright;
(A)in the manner agreed between the manufacturer and the owner of the copyright or, failing such agreement, determined by the Copyright Tribunal under section 152B; or
(B)if no such agreement or determination is in force - in the manner prescribed by the regulations.”
Section 55(3) provides that the provisions of subpara (1)(d)(i) of s 55 are inapplicable where the record was made after the expiration of a period prescribed for the purposes of s 55, being a period of one month (reg 15). Thus the consequence, but for the provision of s 55(2), is that once a record of the work has been made in or imported into Australia, the time prescribed by s 55(4) has expired and the other provisions of s 55(1) are satisfied, the manufacturer of a record of the work has a statutory licence to record an adaptation of the work without that adaptation being an infringement. The statutory licence, however, is subject to s 55(2) which is in the following terms:
“The last preceding subsection does not apply in relation to a record of an adaptation of a musical work if the adaptation debases the work.”
Hence the issue tendered for trial.
THE LEGISLATIVE HISTORY
The scheme of statutory licence contained in Division 6 of Part III of the Act titled “Recording of Musical Works” finds its origin in legislation introduced in 1909 in the United States. Writing of the United States legislation, the 1959 Copyright Law Review Committee (the Spicer Committee) said in its report:
“It was introduced into the Copyright Law of the United States in what was regarded as the public interest to prevent monopoly in the mechanical reproduction of copyright musical works.”
The present United States legislation is to be found in Title 17 of the United States Code 1976. It contains no precise equivalent to s 55(2). However, a statutory licence is granted where the adaptation does not “change the basic melody or fundamental character of the work”. No test of debasement is propounded or needed.
Until the enactment of the present Act, copyright law in Australia was to be found in the Imperial Copyright Act 1911, extended to Australia by the Copyright Act 1912 (Cth). The 1911 United Kingdom Act adopted by Australia had been preceded by the Berne Convention signed at Berlin in November 1908. Prior to that time mechanical reproduction of music was technically of little concern. However, by the time of the Berne Convention in 1908 the gramophone had been invented and mechanical reproduction was technically feasible. Section 19 of the 1911 Act introduced the concept of compulsory licence into United Kingdom and then Australian law. Subsection (2) provided:
“It shall not be deemed to be an infringement of copyright in any musical work for any person to make within the parts of His Majesty’s dominions to which this Act extends records, perforated rolls, or other contrivances by means of which the work may be mechanically performed, if such person proves -
(a)that such contrivances had previously been made by, or with the consent or acquiescence of, the owner of the copyright in the work; and
(b)that he has given the prescribed notice of his intention to make the contrivances, and has paid in the prescribed manner to, or for the benefit of, the owner of the copyright in the work royalties in respect of all such contrivances sold by him, calculated at the rate hereinafter mentioned:”.
The precise reason why the monopoly rights of the owner of copyright in a musical work should be so diminished by a system of compulsory licence, is not easy to understand. In the 1909 report of the United Kingdom Board of Trade, there is a suggestion that there was a danger of monopoly where one or more large manufacturing companies could secure rights from authors of musical works to such an extent that other manufacturers might be practically excluded from the trade. Whether that was a risk more imagined than real can no longer be answered.
The legislation remained in its form, both in the United Kingdom and in Australia, until the repeal of the 1911 Copyright Act by the Copyright Act 1956 of the United Kingdom. That legislation was preceded by the report of the Copyright Committee of the Board of Trade in 1952 (the Gregory Committee) which recommended the continuance of the system of statutory licence on the basis that there were no sufficient grounds for recommending any substantial change in a practice which by then had a history of forty years behind it. The 1956 United Kingdom Act provided, relevantly, as follows:
“8(1) The copyright in a musical work is not infringed by a person (in this section referred to as ‘the manufacturer’) who makes a record of the work or of an adaptation thereof in the United Kingdom, if -
(a)records of the work, or, ... of a similar adaptation of the work, have previously been made in, or imported into, the United Kingdom for the purpose of retail sale, and were so made or imported by, or with the licence of, the owner of the copyright; ...
8(6) For the purposes of this section an adaptation of a work shall be taken to be similar to an adaptation thereof contained in previous records if the two adaptations do not substantially differ in their treatment of the work, either in respect of style or (apart from any difference in numbers) in respect of the performers required for performing them.” (Emphasis added)
The question of statutory licence was discussed by the 1959 Spicer Committee, which committee saw little logic behind the concept of compulsory licence. The report, at para 157, notes that submissions had been received that under the compulsory licence system a composer had:
“... no power to prevent or control the production of an inferior record of his work. This danger, it is said, is particularly great in the case of cheap records. Lord Jowitt in the House of Lords debates on the Copyright Bill, argued strongly against the compulsory licence system on this ground.”
The report notices also a further argument against the system of compulsory licensing in that it gives to the record maker an economic advantage withheld from other classes of music uses and qualifies the rights of the copyright owner in a way not suffered by any other copyright owner.
The Spicer Committee also noted, however, advantages in the system. So, at para 160, it said:
“On the other hand, the compulsory licence provisions may be said to serve the copyright owner and the general public in a number of ways. They prevent the development of a monopoly in record manufacture. The resulting competitive situation gives to the public the advantage of being able to hear a wide variety of renditions of the work. Music in this respect differs from other forms of copyright material. It can only be appreciated by being heard and the interpretation of a particular orchestra or performer may contribute much to the understanding and enjoyment of the work by the listener. A wide variety of interpretation, apart from benefitting the general public, is of advantage to the copyright owner, producing, as it does, greater sales of records and a longer period of demand for popular works. The competition existing at present provides some protection against inferior recordings as the better recordings tend to drive poor recordings off the market.”
That Committee ultimately took the same course as the Gregory Committee had before it. Because the provisions for compulsory licence had a long history and were widely accepted, the Committee did not recommend their repeal. The Committee contented itself with recommending a minor change to the provisions of the 1956 United Kingdom legislation to substitute the word “instruments” for “performers”.
In May 1967 there was introduced into Parliament a Bill to amend the copyright law. As so introduced the Bill contained the following cl 54(2) as the predecessor to s 55(2):
“The last preceding subsection does not apply in relation to a record of an adaptation of a musical work ... -
(a)where the previous records ... were records of the work in its original form and did not include records of an adaptation of the work - unless the relevant adaptation is substantially the same in style, and requires the use, for its performance, of substantially the same instruments, as the work in its original form;” (Emphasis added)
The Bill laid before Parliament until 1968 when an amended Bill was reintroduced. That amended Bill contained the present s 55(2). Nothing in the extrinsic material assists in elucidating the reason for the change between May 1967 and May 1968. However, in the course of debate, the then Attorney-General, The Honourable Nigel Bowen, said (Hansard, House of Representatives, 16 May 1958 at 1530-1531):
“Prior to the 1911 Act, a person who made a record of a musical work did not infringe the copyright in that work. The 1911 Act gave, for the first time, the copyright owner the right to authorise the recording of his music. Fears were expressed that this could result in the development of a monopoly in the record industry if one or two companies, by employing the best artists and entering into contracts with the leading composers, gained control of the record market. To avoid this, the 1911 Act provided a statutory licence to record a musical work once the work had been recorded with the consent of the copyright owner. The record industry has developed on the foundation of this statutory licensing system.
The 1967 Bill proposed to continue this system, ... It followed what had been done in England in the 1956 United Kingdom Act ... The record manufacturers complained that provisions of the 1967 Bill would narrow the scope of the system to the point where it would cease to apply to the greater part of their business. The owners of musical copyright sought an increase in the royalty required to be paid on records made under the compulsory licence and opposed any change in the scope of the licence.
After full consideration of the arguments that were put by both sides I came to the conclusion that some changes should be made. The most important changes relate to the conditions precedent to the operation of the statutory licence and to control by the copyright owners of the release of records made under the licence. ...”
CONCLUSIONS FROM THE LEGISLATIVE HISTORY AND STATUTORY CONTEXT
What conclusions then are to be drawn from this legislative history and the statutory context in which s 55(2) appears?
First, it must be noted that the mere fact that a work has suffered change, be that change great or small, can not of itself require the conclusion that the original work has been debased because s 52(2) is predicated on there being an adaptation of the work, that is to say, upon the work having been arranged or transcribed.
Secondly, the statutory licence and the royalties which that entails is for the benefit of the owner of the copyright, not the author of the work. Section 55(2) gives no direct right in the author of the work, if not the copyright owner, to claim a debasement. Particularly, it must be borne in mind that Australia did not enact moral rights protection along the lines of Article 6 bis of the 1948 Brussels Act of the Berne Convention, so as to afford to an author protection of his or her honour or reputation. Any suggestion that s 55(2) is a back door attempt at extending moral rights protection is not supported by the legislative history.
Thirdly, s 55(2) is concerned with the work itself being debased. It does not expressly refer to the copyright rights being debased. Some element of ellipsis must inevitably be present. In logic it can be said that the creation of an adaptation can never debase an original work (that is to say the collocation of notes etc which constitutes the musical work) because the original work remains untouched. What then must be meant is that the adaptation has some characteristic which in some way affects the way the original work is regarded.
The legislative history shows a gradual widening of the extent of permissible adaptation. From a test of “similar alterations reasonably necessary” in 1911 through a test of “substantial similarity of style”, the legislation has proceeded to the now broader test of “debasement”. This broadening makes it clear that no longer is there to be a constraint of style or substantial similarity The legislature has given up endeavouring to express a test of similarity. Under the present legislation, the adaptation could be as diverse in style or performance as is conceivably possible, provided that ultimately the original work is not debased. This may lead to the conclusion that debasement has, at least directly, little to do with similarity of style or performance.
Next, s 55(2) must be seen in the context of a system of royalties for performances of works. A person who is the copyright owner is the person who has the right to turn the work to account in any one of the ways to which s 31 of the Act refers. Division 6 entrenches upon the rights conferred upon the copyright owner and diminishes them. In return, the copyright owner is to be paid a statutory royalty. But the qualification upon this statutory diminution of the right of the copyright owner is s 55(2). That suggests that a relevant matter in determining whether there is a debasement will be whether the copyright owner’s ability to turn the work to account, in any one of the ways referred to in s 31, is affected by the making of the adaptation.
However, I do not think that it should be said that the sole test is whether the value of the copyright is diminished because, as has already been noted, the statutory question is whether the work itself is debased rather than whether the copyright will be debased. However, where the circumstances are such that the right in the copyright owner to reproduce the work has been devalued economically, it will almost inevitably be the case that this will be evidence of the fact that the work itself has been debased.
At the heart of the controversy between the parties are the following matters; whether the term “debases” in s 55(2) is dependent upon musicology; whether debasement is to be determined by reference to some section of the community; whether debasement is to be viewed purely economically; and whether debasement is to be looked at by reference to some value judgment to be made of the work.
Senior counsel for the appellants submits that the test of whether a work has been debased is largely objective. What is required is a comparison between the adaptation and the work to determine whether the adaptation affected the integrity, oneness or wholeness of the work, so as to destroy the form, nature, structure and message which the composer intended. Thus, a work will be debased, it was submitted, if the work is so distorted that its fundamental character is changed, that is to say, its form, context and message have suffered change.
Senior counsel for the respondents rightly criticised this test for bringing subjectivity in through the back door in the guise of apparent objectivity. Debasement was said by the respondents to arise where, to a significant segment of the community, the original work was so devalued or lowered in esteem that real injury was or was liable to be caused to the owner of the copyright.
In my view, neither of these tests is satisfactory in the context of the legislation. The appellants’ test comes perilously close to one of determining debasement by reference to the quantum or extent of the alterations constituting the adaptation. Indeed it was initially submitted that if the context or integrity of the work was affected, but to the musical benefit of the work, there would nevertheless have been a debasement.
The test of the respondents is equally unsatisfactory. If the test depends upon a significant segment of the community, there may well be different segments of the community having different views of debasement. There is no reason why a work should be held to have been debased merely because one section of the community regards it to have been, no matter how significant that section of the community might be.
The word “debase” carries with it, as the dictionary meanings convey, the concept of “lower in estimation or value”. According to the Macquarie Dictionary, relevant meanings are:
“1. To reduce in quality or value; adulterate.
2. To lower in rank or dignity.”
Among entries in the Shorter Oxford English Dictionary are to be found:
“2.To lower in estimation, to decay, depreciate, vilify.
3.To lower in quality, value of character; to make base, degrade.”
For reasons I have already suggested, the focus in the present context can not solely be upon economic value of a copyright right since a work having no measurable commercial value might still be debased. Rather, I think that the test to be adopted is whether it is a consequence of the adaptation (taking into account that the adaptation differs from the original) that a reasonable person will be led to think less of the original work.
It will probably be rare for an adaptation of a work, no matter how different the adaptation from the original, to be a debasement of the original. One example might be an adaptation which brings into the original associations which to a reasonable person would be objectionable. So, for example, for a rearrangement of a work to incorporate within it notes associating the work with say a terrorist or racist body would constitute a debasement of the original. Perhaps a parody might bring about the result that one could not recall the original without the parody coming to mind in such a way as to diminish the value of the original: cf Luther R Campbell v Acuff-Rose Music Inc (1994) 127 L Ed 2d 500 (U.S. Supreme Court).
So expressed, the test is objective. So expressed, it relieves the Court from the danger of artistic censorship or, of even more concern, from being an arbiter of taste. The Court in its conclusion may be assisted by evidence, but that evidence will not be directed as the evidence here was, to matters of musicology or taste.
On no view of the matter could it be said here that the techno adaptation debased the original. A reasonable person, in my view, would distinguish the techno version from the original as different in style and approach, while recognising that the techno version in no way detracted from the original.
I would therefore dismiss the appeal with costs.
I certify that this and the
preceding twenty (20) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill
Associate:
Dated: 19 June 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 990 of 1996
)
GENERAL DIVISION )
On appeal from a Judge of the Federal Court of Australia
BETWEEN: SCHOTT MUSIK INTERNATIONAL GMBH & CO
First Appellant
BOOSEY & HAWKES (AUSTRALIA) PTY LIMITED (ACN 000 027 467)
Second AppellantAUSTRALASIAN MECHANICAL COPYRIGHT OWNERS SOCIETY LIMITED (ACN 001 678 851)
Third Appellant
AND: COLOSSAL RECORDS OF AUSTRALIA PTY LIMITED (ACN 005 531 699)
First Respondent
DOMINICO LOPRETE
Second Respondent
SALVATORE LOPRETE
Third Respondent
CORAM:WILCOX, HILL, LINDGREN JJ
PLACE:SYDNEY
DATE: 19 June 1997
REASONS FOR JUDGMENT
LINDGREN J:
I have had the considerable benefit of reading in draft the Reasons for Judgment of Wilcox J and Hill J for which I am grateful. This makes it unnecessary for me to give an account of the factual background in the present case, the Reasons for Judgment of the learned trial Judge, the statutory context in which sub-s 55 (2) of the Copyright Act 1968 (Cth) (“the Act”) occurs, much of the legislative history leading up to its enactment, and those general considerations which favour the respective constructions of the word “debases” in the sub-section which are preferred by Wilcox J and the trial Judge on the one hand and by Hill J on the other.
Wilcox J and Hill J have drawn attention to the new point of departure which was marked by the introduction, with the commencement of the Act on 1 May 1969, of the notion of debasement, as the basis of the exclusion from the mandatory statutory licence in favour of manufacturers of records. The Copyright Law Review Committee (“the Spicer Committee”) addressed the subject of the “COMPULSORY LICENCE TO MANUFACTURE RECORDS” in Part XII (paras 152-216) of its Report of 1959. Until then, the exceptions recognised in copyright statutes seem to have fallen into two classes. One class was a provision which insisted that any alterations and omissions be similar to alterations in and omissions from the work as reproduced from an earlier record or other contrivance which had been made with the copyright owner’s consent, or that the alterations and omissions be only such as were reasonably necessary for the adaptation of the work to the record or other contrivance in question. Provisions of this kind were to be found in sub-para 19 (2) (b) (i) of the Copyright Act 1911 (UK) (and therefore in Australia by reason of s 8 of the Copyright Act 1912 (Cth)) which is set out in the Reasons for Judgment of Wilcox J and of Hill J; sub-s 19 (2) of the Canadian Copyright Act 1952; para 52 (1) (j) of the Indian Copyright Act 1957; proviso (i) to sub-s 25 (2) of the New Zealand Copyright Act 1913; proviso (i) to sub-s 169 (2) of the Industrial and Commercial Property (Protection) Act 1927 of the Republic of Ireland; and, in a somewhat different form, in § 1 (e) of the United States Code, “Title 17 - Copyrights”. These provisions were all referred to in para 163 of the Spicer Committee Report.
The other class of exception was that which had then been only recently introduced in sub-ss 8 (1) and (6) of the Copyright Act 1956 (UK), the relevant terms of which are also set out in the Reasons for Judgment of Wilcox J and of Hill J. The terms of that exception were also referred to in the Spicer Committee Report. It will be recalled that that exception turned on the “similarity” between the allegedly infringing record of the work and an earlier record of it, and provided that the required similarity was established if the two adaptations did not “substantially differ in their treatment of the work, either in respect of style or (apart from any difference in numbers) in respect of the performers required for performing them”.
Both classes of exception required attention to be focused on the music as produced by the allegedly infringing record and the music as produced by an earlier record. Neither called for an aesthetic evaluation. Although the Spicer Committee recommended enacting a provision to the effect of sub-s 8 (6), although with a substitution of the word “instruments” for the word “performers” (a recommendation that was implemented), this did not mark a difference of substance from the then recently enacted United Kingdom provision.
Paragraph 157 of the Spicer Committee Report was as follows:
”157.It was also submitted that under the compulsory licence system a composer has no power to prevent or control the production of an inferior record of his work. This danger, it is said, is particularly great in the case of cheap records. Lord Jowitt in the House of Lords debates on the Copyright Bill argued strongly against the compulsory licence system on this ground.” (underlining supplied)
The Spicer Committee did not, however, recommend that composers be given a right to overcome the “danger” referred to in this paragraph.
The Copyright Bill 1967 was introduced into the House of Representatives on 18 May 1967. As Hill J has noted, sub-cl 54 (2) expressed a ‘substantial sameness in style and instrumentation’ test of a record of an adaptation of a musical work. The sub-clause was as follows:
“(2.)The last preceding sub-section does not apply in relation to a record of an adaptation of a musical work (in this sub-section referred to as ‘the relevant adaptation’) -
(a)where the previous records referred to in paragraph (a) of that sub-section were records of the work in its original form and did not include records of an adaptation of the work - unless the relevant adaptation is substantially the same in style, and requires the use, for its performance, of substantially the same instruments, as the work in its original form;
(b)where those previous records were records of an adaptation or adaptations of the work and did not include records of the work in its original form - unless the relevant adaptation is substantially the same in style, and requires the use, for its performance, of substantially the same instruments, as an adaptation comprised in any of those previous records; and
(c)where those previous records included both records of the work in its original form and records of an adaptation or adaptations of the work - unless the relevant adaptation is substantially the same in style, and requires the use, for its performance, of substantially the same instruments, as the work in its original form or as an adaptation comprised in any of those previous records.” (underlining supplied)
The 1967 Bill lapsed when Parliament was prorogued. The then Attorney-General, Mr N H Bowen QC, introduced the Copyright Bill 1968 in the House of Representatives on 16 May 1968. The comparable provision was now to be found in sub-cl 55 (2) (the present sub-s 55 (2)) and was simply as follows:
“(2.)The last preceding sub-section does not apply in relation to a record of an adaptation of a musical work if the adaptation debases the work.”
In his Reasons for Judgment, Wilcox J has drawn attention to the response of the Attorney General, to a comment made in the debate on the Bill on 5 June 1968. In my opinion, the meaning of the expression “debases the work” in sub-s 55 (2) of the Act is “ambiguous or obscure”, and, accordingly, the discretion given by s 15AB of the Acts Interpretation Act 1901 (Cth) is available. I venture to set out the comment and the Attorney-General’s response:
“Mr Buchanan (McMillan) ...
Under normal circumstances the manufacturer and the composer would get together and presumably they would produce a piece of music which was satisfactory to both of them. Of course, the author would get his 5% royalty. But after the record has been put on the market and after it has enjoyed considerable sales, some other manufacturer may say: ‘This is a snappy tune. We would like to make a record of that, too.’ So he might get some less accomplished orchestra together and produce a record of the tune. The author would have devoted his time and thinking to producing an artistic work. Surely the very thing we are trying to do in this Bill is to protect people who have made some effort to create an artistic work. But the composer will be denied the right to say that the second record manufacturer will not muck up his work.” (Hansard, House of Representatives, Vol 59, 5 June 1968, at p 1959 - underlining supplied)
The Honourable Member for McMillan clearly had in mind a composer’s interest in having a musical work performed in a manner acceptable to him or her. The Attorney General’s response was:
“Another matter that was raised by the honourable member for McMillan was the provision for a compulsory licence in clause 55. He said that the difficulty was that once the composer had allowed his work to be put into record form by one manufacturer a second record manufacturer might come along and ‘muck up his work’, to use the honourable member’s words. An attempt has been made to cover that possibility in sub-clause (2.) of clause 55. If the production is a debased form of the work it is not covered by the freedom from copyright. There would be a capacity to stop a debased form. That is covered in the Bill.” (ibid, at p 1961 - underlining supplied)
The Attorney General’s understanding and intention was that a record might debase an original musical work if it “mucked it up”.
It is not clear what the Attorney-General had in mind when he adopted the Honourable Member’s reference to a “mucking up” of the original work as an illustration of debasement of it. I do not think that he should be taken to have accepted that any record of a performance of the work by a “less accomplished orchestra” would be caught, let alone to have intended that through the notion of debasement, the musical tastes of the Honourable Member for McMillan as expressed in the debate on the previous day should be legislatively enshrined:
“Unfortunately for listeners these records always seem to be the worst of them - the tops of the pops or the top forty and so on. The value to the maker of exposure by broadcast and penetration by transistor to the mind of the teenager and other areas of vacuity is so great that broadcasting stations are inundated with free copies of new records in the same extravagant way as doctors are importuned with free samples of new drugs by medical detailers. Some stations do not play anything else than these jungle tunes, and far from getting any royalty on them the makers should be fined for inflicting them on a defenceless public.” (Hansard, House of Representatives, Vol 59, 4 June 1968, at p 1934)
What the Attorney-General said, however, at least makes it clear, in my view, that the legislative intention was to exclude from the manufacturer’s right, action in relation to an original musical work very generally of a kind protected against by the “droit moral” of authors protected in such European countries as France, Germany and Italy, and subsequently introduced into English law as the “moral rights” of Chapter IV of the Copyright, Designs and Patents Act 1988 (UK). One aspect of that protection has been described in an authoritative text as the “right to object to derogatory treatment of a work”: see Copinger and Skone James on Copyright (Sweet & Maxwell, 13th ed, 1991) at 22-35 to 22-50, at pp 783-788. For this purpose, “derogatory treatment” of a musical work has been described as “any addition to, deletion from or alteration to or adaptation of the work”, which “amounts to a distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author” (cf Copinger and Skone James, supra, at 22-37, 22-38, at p 784). Article 6 bis of the Berne Copyright Convention refers to “any distortion, mutilation or other modification of, or other derogatory action in relation to, the ... work, which would be prejudicial to [the author’s] honour or reputation”.
Like Hill J, I would prefer to be able to construe sub-s 55 (2) as not requiring the Court to arrive at an aesthetic judgment. But like Wilcox J, I am unable to resist the conclusion that Parliament has required that, to some extent at least, there be an evaluative comparison of the original musical work and the allegedly infringing adaptation.
A construction of sub-s 55 (2) of this general kind, as distinct from the narrower one favoured by Hill J (that is, whether “a reasonable person will be led to think less of the original work”), finds some support in a close consideration of the terms of the sub-section. The provision refers to a debasement of a “musical work” by an “adaptation” of it. The expression “musical work” is not defined in the Act and was not defined in its immediate predecessor (the Copyright Act 1911 (UK) in force in Australia by the operation of s 8 of the Copyright Act 1912 (Cth)). A respected text makes the following comment:
“Although some modern works may lack melodic or harmonic structure in the traditional sense, they are in essence the same: each consists of a combination of sounds and noises organised in different ways as to such elements as pitch, volume, quality, duration and rhythm”. (Ricketson, The Law of Intellectual Property (Law Book Co, 1984), para [5.71], at p 115)
In sub-s 3 (1) of the Copyright, Designs and Patents Act 1988 (UK), the expression “musical work” is defined to mean :
“a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.”
In order to be the subject of copyright protection, a musical work must be “made” (sub-s 32 (1) of the Act), and a musical work is made when it is first reduced to writing or to some other material form (sub-s 22 (2)). It is “reproduced” when a record is made of it (ss 21, 10 (1), 55). The musical work is, however, distinct from the “material form” or “record”.
The word “adaptation” in relation to a musical work is defined in para 10 (1) (d) of the Act to mean an “arrangement or transcription of the work.” The expressions “arrangement” and “transcription” are not defined. The present case is concerned with an allegedly infringing arrangement.
Hill J has referred to dictionary definitions of “debase” which I need not repeat.
The debasing referred to in sub-s 55 (2) is a debasing by nothing other than, relevantly, an arrangement of the “sounds and noises”. The debasement is not a debasement by accompanying things; for example, a literary work constituted by lyrics, a dramatic performance, or visual images. If such accompanying auditory or visual material were to lead to the result that a person hearing the original musical work could no longer appreciate it for its own sake because of some horrific, distasteful, loathsome or simply objectionable or unpleasant association, that consequence would be the product, not of the arrangement, but of the accompanying material. Such an association would virtually never arise from a musical arrangement itself. A construction of the sub-section which limited its operation to circumstances in which it did would seem, with respect, virtually to deny to the provision any scope for operation.
It must be acknowledged at once that the view which I favour produces its own anomaly: moral rights of authors are not protected by the Act; it is the copyright owner, not the author, who has standing to sue a manufacturer which falls foul of the exception in sub-s 55 (2). But this does not persuade me to take a different view. First, no thought may have been given to the distinction, or the legislature may have proceeded on the assumption that composer and copyright owner will often be the same person. Secondly, the statutory licence granted to manufacturers by sub-s 55 (1) seems to have been carved out of copyright somewhat grudgingly (see, for example, paras 78-81 of the Report of the Copyright Committee (UK) (“the Gregory Committee”), October 1952, HMSO, Cmd 8662, and paras 166-171 of the Report of the Spicer Committee), and any limitation on the grant, albeit one framed with direct reference to the interests of composers, must have been seen to be of value to the copyright owner. Indeed, it should not be thought that a right to prevent debasement would be of no value to the copyright owner.
The trial proceeded on the basis that the original musical work in question is that which can be heard upon a playing of the Naxos compact disc 8.550196 performed by the Slovak Philharmonic Chorus, the CSR Symphony Orchestra (Bratislava) and soloists and recorded in 1988. I agree with Wilcox J that the question which the case posed for decision was whether the allegedly infringing arrangement constituted a “debasement” or “degradation” of that original musical work. It seems to me that another (I do not suggest, better) way of formulating this question is to ask whether the allegedly infringing arrangement is an impermissible distortion, mutilation or other modification of the musical work. Of course the word “impermissible” itself invokes questions of evaluation and degree.
As Hill J has observed, the capacity to describe music is limited, and “[t]he ear is a better communicator”. It is perhaps not possible for me to say much more than that in my opinion, the answer to the question in the present case is “No”. However, I express my agreement with the substance of the observations made by Wilcox J as to when an adaptation will be a debasement or degradation of an original work. Without repeating all those observations, I would emphasise that “debase” is a strong term which “requires much more than an opinion, even an expert opinion, that the adaptation is musically inferior.”
It seems to me to be significant that the question posed relates to music composed by Carl Orff in 1936, but must be answered by an application of sub-s 55 (2) in the context of the musical technology, societal phenomena and musical genres of the 1990s. As the trial Judge said (at 2):
“The adaptation of the work is recorded on a compact disc known as ‘Excalibur’ which contains four remixed tracks of the ‘O Fortuna’ chorus. The chorus comprises the opening and closing sequences of ‘Carmina Burana’. The evidence indicates that the ‘techno’ genre is a form of music particularly favoured at ‘raves’ which have been described in evidence as all-night dance sessions where loud pulsating music is played. It is said that the techno genre embodies a ‘slavish’ devotion to the use of rhythm as a hypnotic tool that is, largely, if not primarily, interpreted by electronic means.”
In my view, an arrangement will be less likely to be a debasement where, as here, it is an arrangement which “makes available” the original musical work to the musical tastes of a different period of time or of a different sub-culture, or (as here) of both, and which thereby acquires its own integrity. In this respect, I also agree with the following conclusion of the trial Judge (at 33):
“Excalibur preserves substantial and essential elements of the original intact, communicates a powerful exuberance and rhythmic character quite consistent with the character of the work.”
For the foregoing reasons, I agree with Wilcox J and Hill J that the appeal should be dismissed with costs.
I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.
Associate:
Dated:19 June 1997
Heard: 14 May 1997
Place: Sydney
Decision: 19 June 1997
Appearances: Mr D K Catterns QC of counsel, instructed by Banki, Palombi, Haddock & Fiora, solicitors, appeared for the appellants.
Mr A J Sullivan QC with Ms A H Bowne of counsel, instructed by Aroni Colman, solicitors, appeared for the respondents.
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