Crown use of copyright material

197. For historical and public policy reasons, ‘the Crown’[225]—or a government[226]—is in a privileged position with respect to the creation, ownership and use of copyright material.[227] Two reports have recommended amendment of the Copyright Act so that the Crown is on the same footing as other users and creators of copyright material, to accord with principles of competitive neutrality and open government.[228] These recommendations have not been adopted.

198. The Australian Government has stated that it is moving to greater openness and commitment to the release of information it holds[229] through changes to freedom of information (FOI) legislation[230] and to open access licensing of public sector information.[231] The point has been made that ownership of copyright material by the Crown has been ‘reconfigured’ as ‘government investment and public ownership’.[232]

199. In accordance with the Terms of Reference, this Inquiry is focused on government use of copyright material belonging to others—through a statutory licence and other exceptions—rather than on its ownership of copyright. Government ownership of copyright in material, and any licensing decisions made with respect to it, are more properly viewed as ‘rights’ than as ‘exceptions’. However, principles of openness may conflict with property rights in copyright material owned by third parties.

Current law

200. Governments within Australia may use others’ copyright material without such use constituting infringement in any of the following circumstances:

  • pursuant to the statutory licensing scheme concerning the use of copyright material for the Crown in div 2 of pt VII of the Copyright Act;

  • by way of an implied licence to make certain uses of material submitted to government—depending on the nature of the material and circumstances of the submission; and

  • where a particular statute expressly provides immunity from civil proceedings such as copyright infringement.[233]

Statutory licence

201. There is a statutory licence to use material ‘for the services of the Crown’.[234] This does not include educational services[235] and remuneration must be paid, as agreed or as fixed by the Copyright Tribunal.[236] In 1998 the Copyright Act was amended to introduce arrangements for the payment of ‘equitable remuneration’ by governments with respect to ‘government copies’ where there is a declared copyright collecting society.[237] In such cases, equitable remuneration is determined on the basis of sampling rather than full record keeping.[238]

Implied licence

202. There is no direct infringement in respect of works or subject-matter other than works if the copyright owner has licensed the use.[239] Licences may be express or implied and, in general, need not be in writing.[240]

203. The High Court has held that there is no implied licence for a government to use surveyors’ plans that were submitted to it in accordance with regulatory requirements.[241] This has been described as a ‘narrow view’,[242] particularly when contrasted with the earlier decision of the Full Court of the Federal Court in the same case.[243] As the High Court held that there was no implied licence, the government in question was liable to pay licence fees.[244]

Immunity from civil proceedings

204. A number of Australian jurisdictions have some statutory provisions that expressly provide government with immunity from civil and criminal proceedings, including infringement of copyright.[245] For example, the Freedom of Information Act 1982 (Cth) provides immunity to the Commonwealth, a minister, an agency or an officer who gives access to a document as required by the Act, or in the bona fide belief that access was required on that basis. The FOI reforms introduced in 2010 extended this immunity with respect to the new requirements for ministers and agencies to publish, on their websites, information that has been released to an FOI applicant.[246]

205. In reviewing various statutory provisions applying in the Commonwealth and the states John Gilchrist suggested that none of the provisions contemplate compensation to the copyright rights holders.[247] With respect to the Commonwealth provisions, Gilchrist stated:

They operate independently and irrespective of s 183. Neither does s 183 expressly or implicitly refer to these provisions nor do the provisions expressly or implicitly refer to s 183. They have different objects or purposes and are not so wholly inconsistent or repugnant that they cannot stand together. Effect can be given to each provision at the same time. [248]

206. He concluded that each ‘should … be accorded independent operation within their given spheres’.[249]

Options for reform

207. There is some doubt as to whether the statutory licence is available to all levels of government.[250] It appears that it may be applicable to two tiers of government only: the Australian Government, and the governments of the states and territories.[251] It appears that the third tier of government—local government—may not be able to avail itself of the convenience of the statutory licence. The ALRC is interested in views on whether the statutory licence should be available to local government.

208. Some aspects of the statutory licensing scheme may be grounded in the analog world. For example, the Australian Government Intellectual Property Manual, which provides guidance to Australian Government agencies on a variety of intellectual property matters, states:

The agreement with CAL covers the reproduction of text, artworks and music (other than material includ[ed] in sound recordings or films). The CAL agreement also contains limited provisions for the electronic communication of copyright material. However, CAL has not been declared under the Act to collect for that use.[252]

209. The ALRC is also interested in clarification of the operation of general free-use exceptions with the statutory licences; the implications of government policy on statutory licensing schemes and exceptions to copyright; and welcomes suggestions for other reform.

Question 32. Is the statutory licensing scheme concerning the use of copyright material for the Crown in div 2 of pt VII of the Copyright Act 1968 (Cth) adequate and appropriate in the digital environment? If not, how should it be changed?

Question 33. How does the Copyright Act 1968 (Cth) affect government obligations to comply with other regulatory requirements (such as disclosure laws)?

Question 34. Should there be an exception in the Copyright Act 1968 (Cth) to allow certain public uses of copyright material deposited or registered in accordance with statutory obligations under Commonwealth or state law, outside the operation of the statutory licence in s 183?

[225] The term ‘Crown’ is primarily used only in the headings and sub-headings of Copyright Act 1968 (Cth) pt VII whereas the terms expressly used in the text of many of the provisions in that part are ‘the Commonwealth’ and ‘a State’ (which is defined to include the territories). There is some disagreement as to whether the terms ‘the Commonwealth’ and ‘a State’ refer only to the executive government or whether the legislature and judicature are also included: Copyright Law Review Committee, Crown Copyright (2005), [2.11]–[2.16].

[226] These terms are used interchangeably in this Issues Paper.

[227]Copyright Act 1968 (Cth) pt VII. It is unclear whether local government is part of the Crown. See J Bannister, ‘Open Government: From Crown Copyright to the Creative Commons and Culture Change’ (2011) 34 UNSW Law Journal 1080, 1098.

[228] Copyright Law Review Committee, Crown Copyright (2005), xix, xxii; Intellectual Property and Competition Review Committee, Review of Intellectual Property Legislation under the Competition Principles Agreement (2000), 114.

[229] Department of Finance and Deregulation, Declaration of Open Government <> at 9 August 2012.

[230]Freedom of Information (Amendment) Reform Act 2010 (Cth).

[231] Australian Government Attorney-General’s Department, Guidelines on Licensing Public Sector Information for Australian Government Agencies (2012) <> at 9 August 2012.

[232] J Bannister, ‘Open Government: From Crown Copyright to the Creative Commons and Culture Change’ (2011) 34 UNSW Law Journal 1080; J Gilchrist, ‘Crown Use of Copyright Material’ (2010) Canberra Law Review 1.

[233] See J Gilchrist, ‘Crown Use of Copyright Material’ (2010) Canberra Law Review 1.

[234]Copyright Act 1968 (Cth) s 183.

[235] Ibid s 183(11).

[236] Ibid s 183(5).

[237]Copyright Amendment Act (No 1) 1998 (Cth) sch 4.

[238] CAL and Screenrights are the two declared collecting societies for the purpose of the government statutory licences.

[239]Copyright Act 1968 (Cth) ss 36(1) and 101(1).

[240] An exclusive licence is the exception.

[241]Copyright Agency Ltd v New South Wales (2008) 233 CLR 279.

[242] J Gilchrist, ‘Crown Use of Copyright Material’ (2010) Canberra Law Review 1, 35–36.

[243]Copyright Agency Ltd v New South Wales (2007) FCR 213.

[244]Copyright Agency Ltd v New South Wales (2008) 233 CLR 279.

[245] J Gilchrist, ‘Crown Use of Copyright Material’ (2010) Canberra Law Review 1, 39.

[246]Freedom of Information (Amendment) Reform Act 2010 (Cth) sch 4 pt 1 item 50. See Freedom of Information Act 1982 (Cth) s 90.

[247] J Gilchrist, ‘Crown Use of Copyright Material’ (2010) Canberra Law Review 1, 40–41.

[248] Ibid, 40–41. Internal citations omitted. However, the two cases referred to were Saraswati v R (1991) 100 ALR 193, 204 (Gaudron J) and Rose v Hrvic (1963) 108 CLR 353, 360.

[249] Ibid, 41.

[250]Copyright Agency Ltd v New South Wales (2007) FCR 213.

[251] This is because the terms ‘the Commonwealth’ and ‘a State’ are used throughout the provisions in s 183 whereas the word ‘Crown’ only appears in the heading to s 183.

[252] Australian Government Attorney-General’s Department, Australian Government Intellectual Property Manual <> at 9 August 2012, 176–77.