15.37 The Copyright Act does not contain an exception for the use of copyright material for inquiries or royal commissions. These uses are currently made under the statutory licence.
15.38 Public inquiries are established by the executive to inquire into a matter of public importance. The Commonwealth and all Australian states and territories have enacted legislation that provides for the appointment of royal commissions or other public inquiries with powers and protections. Governments may also establish inquiries, task forces, committees and reviews without statutory foundation.
15.39 The Royal Commissions Act 1902 (Cth) provides that an authorised person may make copies of any documents produced before a royal commission that contain matter that is relevant to a matter into which the commission is inquiring. A document includes ‘any book, register or other record of information, however compiled, recorded or stored’. It also provides that a custodian of royal commission records may use the records for the purpose of performing his or her functions or powers. The Act is silent as to the copyright implications. The Act provides certain immunities to commissioners, witness and legal practitioners assisting a royal commission, but it is not clear that these immunities extend to actions for copyright infringement.
15.40 Use of copyright material for investigation, presenting exhibits, briefs and reports is intrinsic to the conduct of an inquiry. These uses serve the public interest in ensuring that matters of public importance are thoroughly investigated and the proceedings made public where possible. Most copyright material used for these purposes, such as letters, file notes, and other internal documents of companies, government agencies and private institutions, are not produced for creative or commercial purposes, and do not have any market value.
15.41 There are exceptions for these uses in the United Kingdom and New Zealand. In the UK, copyright is not infringed by anything done for the purposes of the proceedings of a royal commission or statutory inquiry, or reporting those proceedings. In New Zealand, the exception extends to anything done for the purposes of the proceedings of royal commissions, commissions of inquiry, ministerial inquiries or statutory inquiries, or reports of those proceedings.
15.42 The ALRC considers that the Copyright Act should include an exception for use of copyright material for the proceedings of royal commissions and inquiries established under a statute. If the four fairness factors were considered, these uses would generally be fair: they are non-commercial; are in the public interest; and the material used is generally not offered for sale.
15.43 It is not necessary to extend the exception to every inquiry established by government. The inquiries that are of significant public importance will be established under statute. Uses for other inquiries may be undertaken under the fair use exception or under the statutory licence.
Recommendation 15–3 The Copyright Act should provide for a new exception for the purpose of the proceedings of a royal commission or a statutory inquiry, or for reporting those proceedings.
Australian Law Reform Commission, Making Inquiries: A New Statutory Framework, Report 111 (2010), 57.
Royal Commissions Act 1923 (NSW); Royal Commissions Act 1968 (WA); Royal Commissions Act 1917 (SA); Royal Commissions Act 1991 (ACT).
Constitution Act 1975 (Vic) ss 88B, 88C; Evidence (Miscellaneous Provisions) Act 1958 (Vic) ss 14–21C; Commissions of Inquiry Act 1950 (Qld); Commissions of Inquiry Act 1995 (Tas); Inquiries Act 1945 (NT). Also see: Special Commissions of Inquiry Act 1983 (NSW); Public Sector Management Act 1994 (WA) ss 3, 24H–24K; Commission of Inquiry (Children in State Care and Children on APY Lands) Act 2004 (SA);Inquiries Act 1991 (ACT); Commission of Inquiry (Deaths in Custody) Act 1987 (NT).
Royal Commissions Act 1902 (Cth) s 6F(1)(c).
Ibid s 1B Definitions.
Ibid s 9(6).
Ibid s 7.
Copyright, Designs and Patents Act 1988 (UK) s 46.
Copyright Act 1994 (NZ) s 60.