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Thursday, July 31, 2008


Australia's New Chief Justice and Copyright Law

Yesterday the Federal Attorney-General, Mr. Robert McClelland, announced the appointment of a new Chief Justice of the High Court of Australia, Justice Robert French, who currently serves on the Federal Court of Australia. Justice French will replace the current Chief Justice, Murray Gleeson, when he retires at the end of August. Justice French is the first Chief Justice of the High Court to ever come from Western Australia. Apparently Mr. McClelland overlooked my previous offer to become Chief Justice when the position came up. No hard feelings though.

Whenever a new judge is appointed to the High Court, questions always arise as to the types of decision that judge is likely to make. In a Sydney Morning Herald article on the new appointment political commentator Mark Davis notes that Justice French was one of the judges who recently struck down the World Youth Day laws passed by the NSW Parliament that made it illegal to "annoy" pilgrims at that event. However, as the article also notes, "he was also one of the judges who upheld the Howard government's move in 2001 to block refugees on the the Tampa entering Australia."

Being a keen copyright researcher, however, I was interested in the previous copyright law decisions of the new Chief Justice - and there are quite a few. Indeed, Justice French has sat on many of the significant copyright decisions of the previous decade. Justice French was one of the members of the Full Federal Court who in Kabushiki Kaisha Sony Entertainment v Stevens found that the access code in Sony Playstation games and the BootROM of the Sony Playstation constituted a technological protection measure that was circumvented by Stevens' mod chips , a decision that was subsequently overturned by the High Court. His Honour also was one of the members of the Full Court in Cooper v Universal Music Australia, where authorisation of copyright infringement via online downloading was found to occur.

To me, however, the most interesting judgment of Justice French was in Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd. This was a joint judgment written by French J and another member of the Federal Court who has subsequently been appointed to the High Court, Justice Susan Kiefel. To cut a long copyright case short, in that decision the Full Federal Court considered the infringement of copyright in a number of pornographic films. As part of their decision, French and Kiefel JJ considered whether copyright could be denied to such materials based on their illegality (adult films are actually illegal in most Australian jurisdictions), or whether the remedies available to the plaintiff could be limited on the basis of their content. On the former argument, their Honours stated that (at para. 84):

There is therefore no statutory basis under existing Australian copyright law
for a finding that copyright does not subsist because the content of the
relevant work or subject matter offends against community values or standards.
That is not to say that such considerations may not inform the discretion to
award particular classes of remedy but the scope of such an exercise of
discretion would seem to be narrow.
It will be interesting to see, should a relevant case arise in the future, public policy will play any role in determining the remedies in those decisions.

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