Clarifying the scope of the Crown copyright infringement exemption

Commonwealth, State and Territory governments in Australia are entitled to rely on a wide-ranging exemption to copyright infringement under s 183 of the Copyright Act. This exemption extends to third parties authorised by the Commonwealth or State governments, provided that the otherwise infringing acts are done for the services of the Crown. 

While there is an exemption against infringement, this does not absolve the government’s obligation to notify the owner of the use and agree on terms governing the use (including remuneration) under s 183(4) and (5). The obligation to notify does not apply if it would be contrary to the public interest to do so. The exemption is also subject to arrangements between government and certain copyright collecting societies. 

The exemption applies to copyright in literary, dramatic, musical or artistic works or a published edition of such works, or in sound recordings, cinematograph films, television or sound broadcasts. The exemption does not apply to reproducing, copying or communicating works or other subject matter for educational purposes of an educational institution which is part of, or under the control of, the government. 

Ordinarily, copyright in the source code or object code of computer programs are protected as literary works. However, drafting anomalies in this part of the Copyright Act mean that it is currently unclear whether the exemption to infringement applies to computer programs. This is because while the definition of ‘copyright material’ in s 182B(1) includes a ‘work’, s 182B(2) states that this ‘work’ does not include a literary work consisting of a computer program or a compilation of computer programs. 

The heading of s 183 is ‘use of copyright material for the services of the Crown’. However, the exemption as set out in the provision itself does not use the defined term ‘copyright material’ and instead refers to literary works (without the exclusion of computer programs). The drafting of the provision itself therefore suggests that the exemption covers computer programs.

At the same time, it seems clear that computer programs are excluded from the scope of the collecting society provisions, given those provisions use the defined term ‘government copy’, which refers to the specifically defined term ‘copyright material’ (which excludes literary works in computer programs). This means that where governments rely on the s 183 exemption, the provisions at subsections (4) and (5) will apply, requiring them to notify and remunerate the copyright owner.

Section 183 expressly permits the infringement exemption to apply to non-government entities, where they have received written authorisation from the government, which can be before or after the otherwise infringing act occurred, and where the acts are done for the services of the government. 

The Isentia case addressed the meaning of the phrase: ‘for the services of the Crown’. In that case, Australian News Channel (ANC), which operates Sky News Australia, sought declaratory relief under s 21 of the Federal Court of Australia Act 1976 (Cth) to the effect that acts done by Isentia in respect of its copyright content did not fall within the meaning of s 183(1) of the Copyright Act. The question in this case was therefore whether Isentia had provided media monitoring services to its government customers ‘for the services of the Crown’ and was therefore entitled to the benefit of the protection afforded by s 183(1).

ANC contended that there needed to be a ‘direct connection between the [otherwise infringing] action’ and the provision of a specific government service to citizens. ANC’s position was based on the fact that Isentia’s processes involved the wholesale copying of all published articles and broadcast content (whether or not of interest to the government), which would then be filtered to identify items of interest to the government client and provide extracts with links to clients.

The Court found in favour of Isentia, supporting a broad interpretation of s 183. Justice Burley held that there was no required nexus between the act and specific government service provided to citizens, and even acts which are indirect or preparatory to the services will fall within the scope. His Honour stated:

… [the] language of ‘acts done for the services of the Commonwealth or State’ provides no intrinsic connotation ‘limiting the type of acts to those done for the outward facing or end-use services provided by the Commonwealth or State. An otherwise infringing act is done for the services of the Commonwealth or State when the object or purpose of the act is to benefit the Government entity by assisting its employees or officers in the performance of their functions.  The language of the section does not support the notion that there must be a ‘direct’ connection between the act comprised in the copyright and the provision of a governmental service to citizens. Acts done that assist a government department to perform its proper functions will be no less for the services of the government because they have an indirect, back office or preparatory role.

This article was written with the assistance of Maddison Reznik.