Authors

'Authoring While Dead' (Stanford Public Law Working Paper) by Mark A Lemley and Oliver Wendell Holmes, Jr comments 

Bob Marley died in 1981. But he wrote a song in 2017 with The Killers. At least, that’s what the song credits say. Why? Because The Killers’ song included the two words “redemption songs,” the title of a classic Bob Marley hit. Rather than fight, The Killers agreed to add Marley as a co-author. 

There is an increasing trend in the music industry toward resolving disputes over music copyright by granting co-authorship (or “interpolation”) credit to the claimant, no matter how weak the claim (as in Marley’s case), and even if they are dead (as in Marley’s case). Bob Marley and the Killers are not alone. Olivia Rodrigo agreed to add Paramore as a co-author despite the absence of any plausible copyright claim. Sam Smith did the same with Tom Petty. So did Beyonce. They are all identified as co-authors of the songs they (generally falsely) alleged were infringing. 

But they aren’t and can’t be authors under copyright law. Even if the copyright cases have merit – and they generally don’t – that would make the defendant an infringer, but it wouldn’t make the plaintiff a joint author. Instead, the deal for co-authorship credit appears to be a form of trolling. Under most music contracts it gives the complaining party an undeserved share of the royalties. If that was all it did, we might put up with it. After all, the parties agreed to it for whatever reason. But permitting retroactive co-authorship claims does harm to others and to the system as a whole. It creates problems for later understanding of authorship, for termination rights, and is a form of rights accretion that Jim Gibson warns us about. There is reason to worry that it will lead to a statutory interpolation right– a right to be credited for, get money for, and eventually to control songs that don’t infringe in the first place.  

The subsequent version in Georgia Law Review gives lead authorship to the late lamented Holmes. 

Road Crime

The NSW Law Reform Commission report on Serious Road Crime states 

In accordance with the terms of reference, we focus on serious road crime offences in the Crimes Act 1900 (NSW) (Crimes Act), along with the offence of manslaughter and accessorial liability. 

Some issues are beyond the scope of the review. These include: • road crime offences that are not in the Crimes Act, and reforms to other Acts • broader reforms that are not specific to serious road crime offences or serious road crime victims, or that would affect the criminal law more broadly • some matters that relate to wider NSW Government policies, and • some issues relating to the investigation and prosecution of serious road crime offences. 

We also only consider decisions in individual cases or sentencing outcomes to the extent that they are relevant to whether the law should be changed. 

The review was informed in part by the experiences of victims and their families. We recognise the profound trauma and enduring suffering caused by serious road crimes, which is often compounded by the criminal justice process. 

In addition to considering the lived experience of victims, we consider important law reform principles. These include that any reform should be principled and evidence- based, and capable of operating within the broader criminal framework. We also recognise that the criminal law is just one measure, among many, to address road safety, and may not be the most effective deterrent of risky driving behaviour. We consider unintended consequences of reform proposals. 

This includes any potential disproportionate impact on particular groups in the community, including Aboriginal and Torres Strait Islander peoples. Any change that could negatively affect progress towards Closing the Gap targets should not be recommended without clear and compelling justification. 

Vehicular homicide/manslaughter (Chapter 2) 

Chapter 2 considers whether a new, specific offence of vehicular homicide/manslaughter should be introduced into the serious road crime offence hierarchy.  While we acknowledge that a new offence could have an important symbolic role, we conclude that a vehicular homicide/manslaughter offence should not be introduced. We do not think a new offence is necessary, where the existing manslaughter offence, in combination with other serious road crime offences, appropriately covers the wide range of conduct and criminality of driving that causes death. There is a risk that introducing a new offence could result in symbolic criminalisation only, without leading to more manslaughter charges, or the harsher sentencing outcomes that some submissions desired. 

A new vehicular manslaughter offence could also cause confusion. It may be unclear how this offence would interact with the general manslaughter offence, particularly if the new offence had different or overlapping elements. It could cause confusion about where the new offence sat in the hierarchy of driving offences, and whether the existing offence would still have a role to play in the context of serious road crimes. 

We recommend that the NSW Government introduce a new Law Part Code to record instances where the offence of manslaughter involves driving a motor vehicle. A Law Part Code is a unique code used to identify certain types of offending, and in some cases, the circumstances of an offence. It would allow for better data collection to inform policy in the future. 

We do not consider legislative reform an appropriate way to address the common law rule that regulatory breaches, like traffic violations, cannot be an “unlawful act” for the offence of manslaughter by unlawful and dangerous act. We recognise the concerns raised about the restrictive nature of the rule, but consider that appellate courts are best placed to address any issues arising from the rule. Legislative reform could also have a broader impact on the general offence of manslaughter, beyond manslaughter offences that involve a motor vehicle. 

Offences causing death or bodily harm (Chapter 3) 

Chapter 3 considers whether the elements of the serious road crime offences that cause death or bodily harm are appropriate and operating effectively. We do not recommend any reform to the elements of the offences of dangerous driving occasioning death and dangerous driving causing grievous bodily harm (GBH). 

In our view, the elements are clear and appropriate. The offences sufficiently cover  the spectrum of dangerous driving conduct and are broad enough to be applied flexibly, on a case-by-case basis. 

We recommend adding participation in an unlawful street race or speed trial as a circumstance of aggravation for aggravated dangerous driving offences. The aggravated offence, and the higher maximum penalty, would apply where a person causes death or harm to another while participating in an unlawful race or speed trial. This recognises the high level of criminality involved in the conduct, and the significant danger it poses. 

We also recommend that the NSW Government review the aggravating circumstance of speed and consider other models for determining what the speed threshold should be for aggravated dangerous driving offences. The law currently requires a person to have been travelling more than 45km/h above the speed limit at the time of impact, for the aggravated offences to apply. 

We heard that the current single set limit does not reflect the varying degrees of risk of speeding in different areas. We consider several proposals for models to address this concern, including a percentage model, or a hybrid percentage and threshold speed. The NSW Government should consult with experts to determine the appropriate model and limit. 

We conclude there should not be any other reforms to the circumstances of aggravation for aggravated dangerous driving offences. We recommend introducing two new offences: dangerous driving occasioning actual bodily harm (ABH), and an aggravated version of that offence. These offences would improve the logic and coherence of the serious road crime hierarchy, and address concerns that the offence of wanton or furious driving, which is often charged in response to impacts causing ABH, is outdated. 

The new offences would cover some, but not all, of the conduct currently captured by the wanton or furious driving offence. We recommend that the offence be amended and modernised, to make its scope and application clearer. It should continue to cover conduct that is not captured by any new dangerous driving occasioning ABH offence, such as horse riding related offending. We discuss but do not recommend other proposals that were raised, including a new specially aggravated dangerous driving offence, and a new mid-tier offence such as reckless driving. 

Finally, we outline why we determine that negligent off-road driving is outside the scope of the review. 

Other serious road crime offences (Chapter 4) 

Chapter 4 considers the elements of other serious road crime offences, and accessorial liability provisions. If the recommended new offences of dangerous driving occasioning ABH are introduced, we recommend introducing a new offence of failing to stop and assist after a vehicle impact causing ABH. Currently, the Crimes Act offences of failing to stop and assist only apply if a victim died or suffered GBH. The proposed new offence would maintain consistency in the offence hierarchy and align with the new dangerous driving offences. There should not be any amendments to existing offences. 

We do not recommend amendments to the offence of police pursuit or the offence of predatory driving. These offences remain fit for purpose. We also consider general accessorial liability provisions, as they apply to serious road crime offences. Many victims felt a strong sense of injustice that people who may have had a role in a serious road crime were not held criminally responsible for their actions. They argued that there should be new accessory offences that captured this conduct. 

However, we conclude that new accessory offences that apply to passengers and other people who may have had a role in a serious road crime should not be introduced. New accessory offences would be a significant and undesirable extension of criminal responsibility. Existing accessorial liability provisions, as well as other general offences, are already available in appropriate circumstances. We are also concerned that new accessory offences would carry a risk of over-reach, and disproportionately impact particular groups, including Aboriginal and Torres Strait Islander peoples and people in regional and remote areas. 

Penalties (Chapter 5) 

Chapter 5 considers whether the maximum penalties for serious road crime offences are appropriate, as well as other proposals relating to penalties for these offences. We heard concerns that the penalties available for serious road crime offences did not adequately reflect the seriousness of the conduct, or effectively deter offending. Some suggested that these penalties had contributed to inadequate sentencing outcomes for the offences. Some groups proposed reforms to address concerns, including increasing maximum penalties, introducing mandatory minimum sentences, removing the availability of ICOs as a sentencing option, and increasing mandatory and default licence disqualification periods. 

While we acknowledge these views, we do not recommend any changes to the current penalty regime. In our view, the regime is appropriate, and allows sentencing courts scope to impose sentences that adequately reflect the criminality covered by the offences. 

In our view, the current maximum penalties appropriately reflect the gravity of each serious road crime offence and provide courts sufficient scope to sentence offenders for a broad range of conduct. The maximum penalties are broadly consistent with those in other Australian jurisdictions. 

Higher maximum penalties are unlikely to have any additional deterrent effect, but may disproportionately impact particular groups, such as Aboriginal and Torres Strait Islander peoples, young people and those in rural and regional communities. Mandatory minimum sentences should not be introduced for any serious road crime offences. Introducing mandatory minimum sentences may reduce the number of early guilty pleas and lead to further delays in the criminal justice process. They may also inappropriately constrain judicial discretion and lead to inconsistent and skewed sentencing outcomes. Research shows that mandatory minimum sentences may not be effective at deterring crime, and could instead lead to cycles of reoffending through increased exposure to the custodial system. 

Intensive correction orders (ICOs) should also remain available for all serious road crime offences except manslaughter (for which an ICO is already unavailable). Serious road crime offences cover a broad spectrum of criminality, and ICOs are an appropriate sentencing option in some cases. Removing ICOs as a sentencing option could unduly restrict the discretion of sentencing courts and in practice, could lead to both inappropriately harsh or lenient sentences being imposed. If more sentences of imprisonment are imposed, the risk of reoffending may increase. 

We conclude that mandatory driver rehabilitation programs should not be introduced as a condition of sentence. Targeted rehabilitation programs can play an important part in improving driving behaviour and attitudes. The NSW Government should consider increasing the availability of these programs. While we consider that the programs have significant benefits, we do not think they should be made mandatory as condition of sentence. They may not be an appropriate option in every case and should be a matter for judicial discretion. 

We outline the diverse views about the licence disqualification scheme, but do not make any recommendations for reform. Any change to the licence disqualification scheme would need to be considered in a wider review, as it would impact offences beyond serious road crime offences. 

Sentencing principles and procedures (Chapter 6) 

Chapter 6 considers proposed changes to sentencing principles and procedures that apply to serious road crime offences.   Many victims felt a strong sense of injustice at the sentencing outcomes of serious road crime offences. They did not think that the sentences imposed for serious road crimes appropriately reflected the seriousness of the offences, or adequately recognised the devastating harm caused to victims, their families and the wider community. To address these concerns, some submissions proposed reforms to general sentencing principles and procedures. 

While we acknowledge the concerns we heard about the general sentencing framework, broad reforms to this framework are outside the scope of the review. As these changes would affect the sentencing of offences other than serious road crimes, they would need to be considered in a wider review relating to all offence types. 

We also conclude that there should be no change to specific sentencing principles and procedures that apply to serious road crime offences. This includes amending aggravating factors covering the use of a weapon and violence, taking into account prior traffic offences as criminal convictions, implementing regular reviews of judicial decisions, and introducing a statutory scheme of sentencing guidelines for serious road crime offences in NSW. 

There were mixed views about the Whyte guideline judgment that applies to dangerous driving offences. Some considered that it was outdated and out of step with community expectations, while others considered that it remained appropriate, relevant and workable. 

A guideline judgment may only be reviewed, changed, or revoked by the Court of Criminal Appeal, either on its own motion or following an application by the Attorney General. We outline the views we heard in our review, which may inform any future consideration of this issue. 

Finally, we conclude that standard non-parole periods (SNPPs) should not be introduced for dangerous driving offences. SNPPs represent the non-parole period that is in the middle of the range of seriousness for a particular offence, viewed objectively. However, dangerous driving offences cover a wide range of conduct, so it is difficult to identify such a mid-range. 

Moreover, in circumstances where the NSW Sentencing Council recently raised significant concerns about the SNPP scheme as a whole and recommended it be reviewed, we do not consider it appropriate to recommend any expansion. 

Legislative structure and jurisdiction (Chapter 7) 

Chapter 7 considers proposed changes to the legislative structure of serious road crime offences, and the courts in which these offences can be heard. Some submissions argued that a new, standalone road crimes Act would have an important symbolic and educative role. Though we conclude that a new serious road crimes Act should not be introduced, we do recommend that a new serious road crimes division be created in the Crimes Act. This change would improve the clarity and organisation of the offences in the Act, and could improve understanding. Some argued that serious road crime offences were too serious to be heard in the Local Court, and should be removed from Table 1 and Table 2 of the Criminal Procedure Act 1986 (NSW). While we acknowledge the seriousness of these offences, we conclude that there should not be any change to the existing Table offence classifications. 

There are significant benefits in allowing scope for some offences to be heard in the Local Court, including that it can offer a quicker resolution of matters. The Local Court has sufficient sentencing scope to consider offences that fall toward the lower end of the spectrum of criminal culpability. The current Table offence classifications provide flexibility, and the prosecution (and in some cases the accused) can elect for the most serious cases to be heard in the District Court. This change could also reduce the scope for plea negotiations in some cases. 

We heard suggestions that negligent driving occasioning death, which is currently a summary offence, should become indictable or strictly indictable. Some considered this would appropriately reflect the seriousness of the offence, while others suggested it would allow more flexibility and offer practical and operational benefits. However, we conclude that negligent driving occasioning death should remain a summary offence. This appropriately reflects the level of criminal fault in the offence. Although making the offence indictable would allow a longer time for the investigation and charging process, we do not consider these operational benefits alone justify reform. Further, sentencing statistics suggest that the Local Court has adequate scope to properly sentence offenders for this offence. 

Some submissions suggested that dangerous driving offences under s 52A of the Crimes Act were too serious to be heard in the Children’s Court. Though these offences are serious, we conclude that dangerous driving offences should not be made serious children’s indictable offences so that they are excluded from the Children’s Court jurisdiction. 

In all but the most serious cases, the Children’s Court is best placed to deal with young persons, as a specialist court with a tailored framework for dealing with children. Dangerous driving offences cover a broad spectrum of criminality, and it would be undesirable if cases that fell at the lower end of the spectrum of seriousness were deprived of the Children’s Court’s specialist approach. There is already scope for judicial officers in the Children’s Court to transfer the most serious offences to the District Court. 

This change is unlikely to have a deterrent effect on young people and may have other unintended consequences. For example, it may disproportionally impact Aboriginal and Torres Strait Islander children and contribute to the overrepresentation of these young people in detention. 

The experiences and rights of victims (Chapter 8) Chapter 8 considers the concerns raised by serious road crime victims and their families about their rights and experiences in the criminal justice system. While we conclude that no laws should change in response to the terms of reference, we raise a number of important issues for NSW Government consideration. 

There are a number of areas in which victims’ experiences throughout the criminal justice process could be improved. The term “accident” is distressing to road crime victims, and should be avoided in connection with criminal proceedings for these offences. There is a clear need for more trauma-informed victim support services, particularly for victims in rural and remote areas. We heard concerns about the lack of information provided to victims about the criminal process, and the lack of available counselling. Some victims found the compulsory third-party scheme inadequate and inaccessible. 

Some of the issues raised by victims may be considered in the Department of Communities and Justice ongoing review of the Victims Rights and Support Act 2013 (NSW). Recent amendments to this Act also extend counselling under the Victims Support Scheme to family victims of road crime. This is in addition to the trauma support service, which provides immediate counselling and psychological support. The NSW Government should consider whether restorative justice processes should be made more widely available. There was overwhelming support for restorative justice processes in the context of serious road crime offences, due to its potential benefits for both victims and offenders. There was also some support for Victim Impact Panels. These processes could meet some needs that are not met by the traditional criminal justice system. 

While there are clear benefits to restorative justice, it is desirable that the NSW Government consider making these processes available for a wider range of offences, not only for serious road crimes. We outline the views we heard in the review, which may inform this consideration. Issues may include when restorative justice should be available in the criminal justice process, whether participation should be taken into account on sentence, and whether restorative justice should have a legislative basis. 

Finally, we conclude that there should be no change to the victim impact statement scheme, and the remote evidence in chief provisions. In our view, the current scope of these laws is appropriate in the context of serious road crime offences.

The Commission's recommendations are  

2. Vehicular homicide/manslaughter 

Recommendation 2.1: New Law Part Code 

There should be a Law Part Code for manslaughter where the commission of the offence involves the accused person driving a motor vehicle. 

3. Offences causing death or bodily harm 

Recommendation 3.1: The aggravating circumstance of speed should be reviewed 

The NSW Government should review the circumstance of aggravation relating to speed in s 52A(7)(b) of the Crimes Act 1900 (NSW), to consider whether the limit should be lowered, or whether other models for identifying excessive speed should be adopted, such as nominating a percentage above the applicable speed limit. 

Recommendation 3.2: Participation in an unlawful race or unlawful speed trial should be a circumstance of aggravation 

Participation in an unlawful race or unlawful speed trial should be added as a circumstance of aggravation in s 52A(7) of the Crimes Act 1900 (NSW). 

Recommendation 3.3: New offences of dangerous driving occasioning actual bodily harm and amending wanton or furious driving (1) An offence of dangerous driving occasioning actual bodily harm should be inserted into s 52A of the Crimes Act 1900 (NSW). The elements of this offence should be consistent with the offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. It should carry a maximum penalty of 2 years’ imprisonment. (2) An offence of aggravated dangerous driving occasioning actual bodily harm should also be inserted into s 52A of the Crimes Act 1900 (NSW). The circumstances of aggravation in s 52A(7), amended to include unlawful street racing, should apply to this offence. It should carry a maximum penalty of 4 years’ imprisonment. (3) Both offences should be Table 1 offences, in Schedule 1 of the Criminal Procedure Act 1986 (NSW). (4) The offence of dangerous driving occasioning actual bodily harm should be available as an alternative verdict to the aggravated form of the offence. (5) The offence of wanton and furious driving in s 53 of the Crimes Act 1900 (NSW) should be updated, so it only covers conduct that is not addressed by these new offences. The language of the offence also should be modernised. 

4. Other serious road crime offences 

Recommendation 4.1: Extend fail to stop and assist to impacts causing ABH 

If new dangerous driving occasioning actual bodily harm offences are introduced, a new offence of failing to stop and assist after a vehicle impact causing actual bodily harm should be inserted into s 52AB of the Crimes Act 1900 (NSW). 

7. Legislative structure and jurisdiction 

Recommendation 7.1: A new serious road crimes division 

There should be a new division in the Crimes Act 1900 (NSW) that incorporates the existing serious road crime offences contained in that Act.