For King & Country? The Federal Court confirms the limits of governments’ use of copyright

What does the Copyright Act say about government’s use of copyright material?

The Crown’s use of copyright material is dealt with in Division 2 of Part VII of the Copyright Act (sections 182B to 183F). In Division 2, subsection 183(1), provides that copyright material (emphasis added):

… is not infringed by the Commonwealth or a State, or by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.

Under subsection 183(3) that authority can be provided before or after the acts are done, and

…may be given to a person notwithstanding that he or she has a licence granted by, or binding on, the owner of the copyright to do the acts.

What does ‘for the services of the’ Crown mean?

The words ‘for the services of the Commonwealth or the State’ in subsection 183(1) are not defined in the Act.

Section 183(11) explicitly states that copyright works for the educational purposes of an educational institution are deemed not to be acts done for the services for the Crown for the purposes of this section. However, this is due to the fact that these instances are subject to other parts of the Act. On the other hand, subsection 183(2) explicitly deems copyright infringements associated with the supply of goods by the Commonwealth government to a foreign government for the defence of that country to be for the services of the Commonwealth.

Apart from these two specific instances, the definition is broad. As to how broad, legislative and judicial history has left some clues, but not many.

The legislative history of the enactment of section 183 suggests that the expression ‘for the services of the’ Crown at least means ‘for defence purposes’, and ‘necessarily more’.^[2]

Similarly, judicial consideration of the expression is also limited:

This news media monitoring dispute

News Corporation’s ANC, the owner of Sky News Australia, commenced proceedings in the Federal Court against the media monitoring organisation Isentia in 2021, claiming that Isentia was infringing ANC’s copyright in Sky News Australia’s broadcasting and online content.^[5]

As noted above, Isentia provides media monitoring services to clients, which involves Isentia searching for and extracting parts of news and other media items that are of interest to their clients and supplying that content to them. This process necessarily requires the wholesale copying of published broadcast and online content.

ANC sought a declaration from the Federal Court that ‘acts done by [Isentia] in providing media monitoring services to government customers in respect of Sky News content do not fall within the scope of the “Crown use” statutory licence contained in the Copyright Act.’^[6] Isentia disagreed and argued that its acts do qualify for an exemption under the Copyright Act. As such, the meaning of the expression ‘for the services of the Crown’ was a key issue.

The arguments

ANC’s central arguments basically boiled down to the following, which we will call the outward government services argument:

that the phrase ‘for the services of’ draws attention to what service it is that a governmental body is said to be providing and why the otherwise infringing act is done for that particular service and
that the section is focused on the kind of public services provided by a governmental body to its citizenry, namely, ‘the providing of, or a provider of, a public need, such as communications, transport etc’.^[7]

ANC also argued that:

by referring to ‘a’ (singular) copyrighted work or other subject matter, section 183 requires that each specific copyright work and each specific act comprised in that copyright work must be examined to determine whether it is for the services of the government and
there must be a ‘direct’ connection between the act comprised in the copyright and the provision of a governmental service to citizens.

Isentia, however, argued that acts done by a person authorised by a governmental body for the benefit of the government are also within the protection afforded by section 183 of the Copyright Act submitting that:

… the monitoring of media content is central to the operation of modern government. In particular, on a daily basis, government uses copyright material comprised in broadcast and print media in performing core functions of developing, implementing and reviewing policy and briefing Ministers and senior public servants on issues that government needs to address.^[8]

We will refer to this as the outward and inward government services argument.

The Federal Court’s decision

After reviewing the relevant legislative history and statutory context of the relevant provisions of the Copyright Act, within which section 183 appears, Justice Burley found for Isentia’s outward and inward government services argument, stating that 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.^[9]

Justice Burley also found that the language of section 183 ‘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’ and that ‘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.’^[10]

In terms of the reference to ‘a’ (singular) copyright work, Burley J observed that the language used in section 183 actually highlights the various possible types of copyright interests it covers and that it does not always necessitate identifying the infringing act, labelling it as the ‘act,’ and matching it with a service. In so doing, he noted that it would be impractical for such a scheme to operate in an act-by-act way, where multiple copyrights may be affected by a single reproduction’.^[11]

In relation to Isentia’s media monitoring services, Burley J found that media monitoring is ‘important to the performance of the functions of the representative government clients’ (used as examples in this test case) to keep abreast of what is reported in the media as it allows for example:

government entities to develop policy and respond to the needs of the public
enables public servants to provide information and advice to their superiors and Ministers, to assist in the conduct of investigations and
enables government entities to be informed of community behaviour and of events falling within the remit of the department concerned.^[12]

His Honour also found that the process that Isentia uses, namely the wholesale copying, storing and indexing of copyright works to make a subset of the copied works available to clients does not disqualify Isentia from the protection provided by section 183, despite some copyright works never being delivered to clients. He found that the ‘broad and facilitative language of s 183(1) allows for such copying activities, provided that they are done for the services of the’ government.^[13]

His Honour noted that the system used by Isentia does involve copying the entire Sky News content, much of which will not be sent to their clients since not every piece of content would be relevant to those clients. He also noted that it there may be ‘a better system’ that is available that ‘involves less copying and less redundancy’.^[14]

However, he found that this ‘redundancy’ does not mean the acts undertaken in providing their services are not covered by section 183, since their media monitoring service requires the filtering of every piece of content to determine what is relevant to their clients and what is not relevant. In doing so, he held that each relevant act undertaken in this process is undertaken ‘for the purpose of providing the service, and the service is for the benefit of the client.’^[15]

In terms of the judicial history of the language used in section 183(1), Burley simply found that none of the previous considerations of this language supported the limitations inherent in ANC’s external government services argument.

Crown use moving forward

It is important to remember that the Crown use provisions remain qualified by a requirement to remunerate copyright owners.

In 1998, amendments to the Copyright Act introduced arrangements for the payment of ‘equitable remuneration’ for ‘government copies’ where there is a declared copyright collecting society. These provisions also override the historical requirement for government departments and agencies to notify copyright owners of use of their material.

The Copyright Agency has been declared by the Copyright Tribunal as the collecting society for government reproductions of text and images. Similarly, Screenrights manages government licensing for copies of a film, TV show, documentary or other screen project from a broadcast or from the internet. APRA-AMCOS manages government use of musical works.

However, leaving aside the ongoing need for equitable remuneration in respect of Crown use of copyright works, this decision is significant. While ANC may still appeal this decision, if it stands it will provide much needed clarity to the scope of the Crown use provisions of the Copyright Act, both in terms of uses undertaken by the Crown directly but also, importantly, for the use of copyright works by third parties authorised in writing by the Crown in outsourcing arrangements, such as that existing between Isentia and the Commonwealth. As a result, this decision will provide any current or future business providing their services to governments with more confidence when they do need to use copyright works to render their services to those governments in the future.