Copyright is a body of law that impacts upon the production and circulation of commodities that helped define Australian culture. The chapter provides an overview of Imperial copyright laws that conferred rights on British subjects living in British dominions. Australian colonial copyright laws and the first Federal law are then discussed in light of the Berne Convention for the Protection of Literary and Artistic Works (1886). Both before and after Federation, Australian copyright laws remained nested within the framework of Empire, until the passing of the Copyright Act 1968 (Cth). How the placement of Australian law within Empire impacted upon Australian creators is explored in relation to the artist and illustrator, May Gibbs (1877-1965). Race is more difficult to account for in Australian copyright history. How Protection and Assimilation areas laws restricted artistic expression and the enjoyment of copyright is explored with reference to Aboriginal artist Albert Namatjira (1901-1959).

The first and second of these are certainly worth celebrating in their own right as significant milestones in the development of public international law generally, but it is the third – national treatment – which is the starting point for the subject of the present paper, namely a consideration of the provisions made for limitations and exceptions to copyright protection under the international agreements.

Article 10(1) of the Berne Convention mandates a quotation exception that is broad in scope, one that is not limited by work, nor type of act, nor by purpose, and is only subject to the conditions in Article 10, namely, the work has been lawfully made available to the public, attribution, fair practice, and proportionality. We call this “global mandatory fair use.” This overlooked norm in international copyright law is unaffected by and distinct from the three-step test and, as such, potentially dislodges its dominance. In turn, this creates different possibilities for how to conceive of and assess copyright exceptions at the national level. To substantiate our argument, this chapter is structured in three parts. outlines our underpinning contention, namely, that Article 10(1) creates a global mandatory “fair use” type obligation. explains why this obligation is unaffected by the three-step test in international copyright law. Finally, in , we draw out the differences between Article 10(1) and the three-step test and illustrate the potential relevance of this for national law using the specific case of US “fair use.”

The story of Stravinsky’s relationships with music publishers is bound up with the political upheavals of the Russian Revolution and two world wars, as well as the copyright laws of countries in which Stravinsky lived and in which his works were published. In the course of his career, his works were published by a bewildering array of firms including M.P. Belaieff, P. Jurgenson, Édition Russe de musique, Adolphe Henn, J. & W. Chester, Éditions de la Sirène, B. Schotts Söhne, Associated Music Publishers, Leeds Music, Mercury Music Corporation, Charling Music, Edward B. Marks, Edwin Kalmus and Boosey & Hawkes. Stravinsky’s Le Faune et la Bergère (1906) was published by the Russian firm of Belaieff which had an office in Leipzig, its aim being to secure Western European copyrights for Russian composers (notably Rimsky-Korsakov, Stravinsky’s teacher). Although Fireworks was issued by the German firm of Schott in November 1909, most of the other works from Stravinsky’s early years up to and including The Firebird (1910) were issued by P. Jurgenson in Moscow. Founded in 1861, by 1900 it was much the largest music publisher in Russia and remained in the hands of the family until the firm was expropriated on Lenin’s orders in 1918, its catalogue forming the basis of the nationalised State Music Publishing House.

In this chapter, we explore the history of Article 10(1) Berne, in order to enable the reader to understand the key stages in its evolution that inform or confirm our interpretation of the character and breadth of the provision. As we will see, several important features of Article 10(1) Berne, including the meaning, length and purpose of ‘quotation’, were explored as part of the travaux to the Stockholm revision of the Berne Convention. These travaux offer valuable guidance to clarify the meaning of the text (where its meaning is unclear) and to confirm a meaning deduced in the normal way from the ordinary meaning of the text, viewed in its context and in light of its object and purpose.

The Berne Convention was intended to be regularly revised, but we've now gone almost half a century with no substantive change - and it is looking increasingly unlikely to ever be changed again. But as the world radically transforms around it, Berne’s superseded structures continue to be locked in and given teeth by TRIPS. This chapter explores the practical extent of that lock-in, and provocatively argues that we may soon reach a point where rational countries choose to take Berne’s ‘front door out’: to exercise their rights to domestically depart from its minima to reach a more satisfactory copyright bargain for their authors and the broader public.

This chapter documents how British writer, Sir Thomas Henry Hall Caine used the Berne Convention to popularise authors’ rights on a speaking tour of Canada in 1895 (where on behalf of the Society of Authors, British Parliament and American publishers he was tasked with preventing Canada’s effective withdrawal from the Berne Convention). Caine’s efforts demonstrate how the tension between the utopian idea of copyright as a natural right and the political pragmatism that Ricketson identified as underpinning the Berne Convention 1886 played out in practice. This history helps us understand how the idea of a universal right of authors continues to influence the public imagination as the main rationale for copyright.

As an area of legal study and practice, intellectual property (or IP) law lacks the conceptual coherence of an internally consistent and discrete law subject like contract, crimina’ or tort, which each has its own normative rules applicable throughout, or even one that describes a category of law involving the application of a number of such law subjects to a particular subject matter, like environmental law or entertainment law. For this reason, mixing and matching notions or terms from one area of IP law with those from others can be at best confusing and at worst dangerously misleading, however beguiling it may be to do so. To avoid both, the well-crafted IP treatise provides invaluable assistance and clarification.

The negotiators of the WTO TRIPS Agreement made a conscious and far-reaching decision to incorporate substantive provisions of the central pillars of the multilateral intellectual property system, the Paris and Berne Conventions, not only into the TRIPS Agreement itself but also into the broader complex of multilateral trade law. Subsequent dispute settlement practice has eased concerns that this fundamental structural decision would lead to a fragmentation of the international law of intellectual property. Yet the intent behind, and the full consequences of, this decision are not entirely apparent. This chapter maps out the issues, and draws on the practice of dispute settlement thus far and on the lessons of domestic policy making and legislation to suggest a systematic and coherent approach to showing the 'respect' to these venerable conventions that the TRIPS Agreement text ostensibly requires.

Given all the circumstances surrounding the attempts to oversee the performance of legal academics and their research efforts, it is remarkable that Sam Ricketson has written and published his treatises on the law of intellectual property (in Australia), the 100-year history of the Berne Convention and the Paris Convention. Hindsight is always 20/20 as noted so frequently by the courts when considering inventiveness and what was obvious at a given prior point in time. it was not obvious at the time of commencing these works that they would be so successful Yet hindsight tells us that Ricketson’s decisions to invest so much of his time and energy into writing his treatises were rational and obvious decisions and the outcomes for both himself and the multiple audiences that enjoy the fruits of his labour equally predictable.

This chapter recapitulates Professor Ricketson’s analysis in his 1992 Manges Lecture at Columbia Law School, presciently titled 'People or Machines: The Berne Convention and the Changing Concept of Authorship'. As Ricketson systematically developed the inquiry, it became clear that ‘People or Machines’ in fact meant ‘People Not Machines’. This chapter considers whether, more than twenty-five years later, subsequent technological developments warrant reconsideration of the human authorship premise underlying the Berne Convention. If that premise holds firm, the next question is whether non-human-generated outputs require some form of intellectual property protection. Any such regime, it should be noted, would fall outside the Berne Convention.

When Ezra Pound launched his writing career in London in 1908, English copyright was governed by an Act of 1844, which required registration of works at Stationers’ Hall in order for copyright to be secured. The Act was soon replaced, however, by the Imperial Copyright Act of 1911, under which copyright protection was extended to works upon creation without the need for registration. Notable among the changes effected by the Act of 1911 was the extension of the term of copyright to life plus fifty years (subject to certain exceptions). Previously, the law fixed the term of copyright at either forty-two years from first publication or the life of the author plus seven years, whichever proved the longer. Two provisions allowed for compulsory licenses as a limitation on copyright.

Chapter 3 provides a short overview of IP law for those not familiar with it. It introduces the major concepts of patent law, copyright law, trademark law, and design patent law, focusing on internationally agreed upon frameworks and treaties such as the Berne Convention, the Paris Convention, and TRIPS. It also walks readers through fundamental concepts like territoriality, validity, direct and indirect infringement, and remedies.