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Abstract
This Thesis considers the concept of the ‘public domain’ and whether such a space exists, or has the capacity to exist, under Australian copyright law. Rather than the bulk of public domain literature that presumes that the public domain is an intrinsically valuable space, the Thesis commences from the premise that the role and history of a national public domain must be examined before any judgment on its benefit can be made. Therefore it seeks to situate the public domain by referring to solely Australian issues of constitutional and copyright law, from the enactment of the first colonial copyright statutes through to the Copyright Act 1968 (Cth).
The Thesis begins with an evaluation of two doctrines of the Australian Constitution: section 51(xviii), which provides the Federal Parliament power to make laws with respect to ‘copyrights’ and the implied guarantee of freedom of political communication, the only doctrine guaranteeing any form of freedom of expression in the Constitution. This discussion examines whether there has been or is any role for the public domain within these doctrines. Following this constitutional analysis, the focus of this research turns to an evaluation of the copyright laws passed in the pre-Federation colonies through to today and the standing of the public domain under these statutes. Both the specifics of a number of the provisions contained in these statutes and the social history surrounding the passing of these laws are analysed to create a greater understanding of the role and standing of the public domain from pre-Federation Australia to the present day.
The Thesis concludes by evaluating a number of findings on Australia’s public domain and recommends different constitutional, legislative and public policy reforms that would heighten the position of the public domain in Australian law and policy today.