Crown copyright use – Government reigns in Federal Court decision

The Federal Court's ruling in Australian News Channel v Isentia provides clarification on the scope of Government's copyright use

What you need to know

• Australian governments benefit from an exemption from infringement claims for use of copyright materials where that use is "for the services of the Commonwealth or State".
• The Federal Court's judgment in Australian News Channel v Isentia provides welcome clarification as to the scope of this exemption.
• The scope of the exemption is broad, exempting acts by or on behalf of Commonwealth and State governments from infringement not only where they are in relation to "outward citizenry services", but also where they are for internal or indirect facilitation of performing services.

What does this mean for you?

• For government departments – the services for which the Crown copyright exemption applies is broad. Importantly, it is not constrained to direct or outward facing services but can encompass use of copyright material for all aspects of a government's functions and activities. 
• For copyright rightsholders – while the exemption for copyright infringement for government departments and authorised persons providing services on their behalf is "broad and facilitative", the use nonetheless still requires equitable remuneration to be paid to the copyright rightsholder for that use.

Crown use under the Copyright Act

Crown Copyright is addressed at Part VII of the Copyright Act 1968 (Cth), which contains copyright rules specific to the Commonwealth and State government use of copyright materials.

Part of Crown Copyright is the principle of Crown use. Under s 183(1) of the Copyright Act, Commonwealth or State governments, as well as authorised persons, are exempt from copyright infringement where the acts are done "for the services of the Commonwealth or State". 

This threshold is not defined in the Act, and the judicial discussion on the interpretation of s 183(1) had not previously been definitive. Previously, there had been no discussion on construction, and only a few examples of what constituted "for the services of the Commonwealth or State" had been established in case law (for example, the use of the song 'I am Australian' in the course of Australian citizenship ceremonies in Pocketful of Tunes Pty Ltd v Cth [2007] FCAFC 80).

The Isentia case

The case of Australian News Channel Pty Ltd v Isentia Pty Ltd [2024] FCA 363 (Isentia) is the first time the Court has provided guidance on the construction of this exemption, and therefore, its scope and limitations.

The central issue in Isentia was the question of how far the ambit of "for services of the Commonwealth or State" extended. Australian News Channel Pty Ltd (ANC), the Applicant, provides broadcast and online content through Sky News Australia. Isentia Pty Ltd, the Respondent, provides media monitoring services to clients (including Commonwealth and State bodies). These services often include copying articles and broadcast content. Isentia provided government clients with Sky News broadcasts and articles as part of its media monitoring services, and ANC consequently claimed that Isentia's use of their materials was copyright infringement that did not fall under the exemption at s 183(1).

In Isentia, there was no debate that Isentia had infringed copyright but for the application of the s 183 exemption. The case turned upon the accepted construction of the provision, and the resulting scope.

ANC submitted that to fall within the ambit of s 183(1), there must be a "direct connection" between the acts and "the provision of a governmental service to the citizenry". They contended that Isentia's gathering of copyright material to distribute in their media monitoring service did not have a "direct connection" to any citizen service.

Isentia, in contrast, favoured a broader construction, and submitted that its acts in relation to the Sky News copyright materials would fall within scope of the exemption, because the exemption would extend to acts that were "for benefit of the government". They disputed ANC's assertion that a direct connection to a specific service was required to enliven the exemption. Isentia argued that the monitoring of media is integral to the functioning of representative government, and therefore, their use of the copyright materials would be within the ambit of s 183(1).

Characterisation favoured by the Court

In his judgment, Justice Burley relied on the ordinary dictionary meaning of the words in the provision, and found that the language did not "naturally carry" the limitation that ANC had submitted. His Honour determined that there was no linguistic indication that a "direct connection" between the otherwise infringing act and the provision of a service for citizens was required under the exemption. 

Consequently, His Honour favoured the construction submitted by Isentia. It was decided that for the purposes of the s 183(1) exemption, there was no distinction between outward facing governmental services and internal functions in connection with the provision of a service. Rather, where an act is beneficial to a government entity through its assistance in the performance of the entity's functions, it will fall within the ambit of s 183(1). Such acts are "no less for the services of government because they have an indirect, back office or preparatory role".

In this light, His Honour found that Isentia's service of providing government clients with news and media reports was important to their function. His Honour was satisfied that this service was important in terms of making policy, conducting investigations, and being aware of issues and conversations in the community, and therefore, the acts were to be exempt from copyright infringement under s 183(1).

What this means

The judgment in Isentia provides confirmation of the scope of the s 183 exemption, which is "broad and facilitative". Government agencies and departments, and those authorised by them, will not be infringing copyright if their acts are for the benefit or service of the government. The exemption extends to cover acts that facilitate government departments in the performance of their functions (including media reports). However, whilst this makes clear that the exemption from infringement is broad, Crown use under the Copyright Act still requires "equitable remuneration" to be paid for such use of copyright materials.

Author: Anita Cade, Partner and Lily Sommer, Graduate.