Crown Copyright
State ownership and
use of copyright
Your speaker:
Isabel Parsons
Managing Principal
Solicitor
Commercial & Property
Branch
Scope of this seminar
• Crown copyright – special rights of the State as
owner
• statutory rights of the State to use copyright –
protection from infringement
• paying for State use – role of collecting societies
and collecting society agreements
What is copyright?
• right protecting original works and other subject
matter, Copyright Act 1968 (Cth)
• works – literary, dramatic, musical and artistic
• other subject matter– published editions, film,
video and sound recordings, radio and TV
broadcasts
• no registration or formalities, but copyright notice
may be used
Exclusive rights of the copyright owner
• extent and duration depends upon the work or
subject matter
• works – reproduce, publish, perform in public,
communicate to public, make adaptation
• other subject matter – copy, cause to be seen or
heard in public, communicate to the public
• assignments, licences
Crown as owner of copyright
• Crown prerogative
• General ownership provisions of the
Copyright Act
• Crown Copyright provisions - ss 176, 177
and 178
Crown prerogative
• s 8A Copyright Act preserves prerogative
right and privileges of Crown
• historic duty of the Crown to superintend
publication – AG (NSW) v Butterworth & Co
(Australia) (1937)
• unlimited duration
• statutory materials and judgments (some
debate about scope)
General ownership provisions of
Copyright Act
• principal rule is that author or maker is the
owner
• subject to Copyright Act and agreement
• major exception – works created by
employees - s 35(6)
• ordinarily contractors continue to own
copyright, subject to implied licence
General ownership provisions and
the Crown
• State also has benefit of s 35(6) works
created by public servants
• significant gaps – judges, holders of
statutory office, volunteers
• Crown copyright provisions can put the
State in a special position re contractors
and commissioned works
Crown Copyright provisions
Part VI Division 1
• Crown copyright materials – include Hansard,
bills, legislation, judgments, unpublished and
published reports, internal documents
• Crown copyright provisions determine ownership
in situations including:
– works produced by or on behalf of government by
employees and others
– works commissioned or supplied by contractors
where no agreement concerning copyright
Crown Copyright provisions
• ss 176 and 177 – State will own copyright in works made or first
published
• s 178 – State will be owner of copyright in sound recording or film
made
by, or under the direction or control of the State
• s 179 – varied by agreement with author of work or maker of
sound recording or film
• duration 50 years from publication or (for most artistic works)
when made
Who is the State?
• Ministers, Departments, statutory corporations or
other bodies which are ‘the Crown’
• difficulties of identifying Crown bodies: constituent
legislation, common law tests
• does not include other government bodies or local
government
• Crown copyright vests in the State, not Crown
bodies
What is ‘by, or under the direction
or control’?
• Copyright Agency Ltd v State of NSW (2007 FC
FCA)
– by: servant or agent brings work into
existence
– direction or control – Crown determines
whether work will be made
• general direction inadequate: BBC v Wireless
League Publishing (1926)
• contracts for production of works should deal
with copyright ownership and use
First publication by the State
• can first publication by State secure copyright
for the Crown?
• s 176 subject to s 29(6) re unauthorised
publication
• CAL v State of NSW: publication without
licence cannot be first publication, acts under
s 183 are not publication
• caution – Crown needs at least an implied
licence to publish
Management of government
copyright
• Attorney-General has overall responsibility for Crown
Copyright, exercised subject to 1991 Guidelines (under
review)
• Department of Premier and Cabinet is responsible for
regulation and administration of collecting society agreements
• no WoVG policy governing the management of government
copyright
• DPC appointed Copyright Manager in 2008 to address WoVG
issues including completion of Victorian collecting society
agreements and development of WoVG IP Principles and
Policy
• future policy development needs to include Victorian State
Copyright Management Policy
Requirements for licensing under
1991 Crown Copyright Guidelines
• applies for ‘assistance of officers of
Departments and Crown bodies’
• fees to be charged
• authorisation from Attorney-General,
Government Printer or Minister authorised by
Attorney-General
• statements to be included in licensed material
• detailed recommendations for retailing
electronic government information
Limitations of 1991 Crown
Copyright Guidelines
• applies to any work (logo, photograph, multi
million $ software)
• process for authorisation is inflexible
• no reference to exceptions under Act (eg fair
dealing)
• little practical guidance
• lack of publicity
• failure to deal with intra-government use
Likely future directions for Crown
Copyright
• Copyright Law Review Committee Report
on Crown Copyright – abolition of key
Crown rights and improved administration
• no formal response from Commonwealth
or State
• major policy issues with recommendations
Crown as user of copyright
• agreements directly with copyright owners:
licence agreements, licence provisions in
other contracts
• implied licences
• exceptions or defences to infringement
• statutory government licences
Use of copyright material for the Crown
Part VII Division 2
• s 183 statutory copyright licence for
government
• s 183A special arrangements for copying
for the services of government
Statutory licence – s 183
•
•
•
•
•
not an infringement of copyright
by State or a person authorised in writing
to do any copyright act
for the services of the State
notification of owner and payment required
Implied licences and s 183
• if State has an implied licence, does s 183
apply?
• CAL v State of NSW PC FCA – implied licence
in surveyors plans
Licence to do everything that under the statutory and
regulatory framework that governs registered plans, the State
is obliged to do with or in relation to, registered plans
• appeal before High Court today
Special arrangements for copying
for government – s 183A
•
•
•
•
does not include computer programs
copying in any form - hard copy, digital
no need to notify or pay owner
pay equitable remuneration worked out using
method as agreed with declared collecting
society or determined by Copyright Tribunal
• pay collecting society
Declared collecting societies for
government copies
• declaration of collecting societies for s 183A
• Copyright Agency Limited (CAL)
– reproduction of works and published editions (other
than those included in sound recordings, films,
television or radio broadcasts)
• Screenrights
– reproduction of television and radio broadcasts
Victorian agreements with
collecting societies under s 183A
• CAL retrospective agreement 2000-2006
• CAL proposed prospective agreement (to
include digital copying)
• Screenrights proposed agreement
(retrospective and prospective)
CAL retrospective agreement 2000
to 2006
• covers of photocopying of works by departments
and Crown bodies listed
• separate invoices
• payment based on per page rate x average
number of pages copied x FTEs
• average number of pages based on Surveys
1991-2003
• Victoria participated directly in Surveys 1 (1991)
and 2 (1998), and Survey 4 (2006)
CAL proposed prospective
agreement
• under negotiation with all States
• will cover hardcopy and digital reproduction by
departments and Crown bodies listed
• detailed discussions are underway for survey
design
• rates not yet agreed
• communication of copies to public not covered
Screenrights proposed agreement
• no States have entered into an agreement
with Screenrights
• Screenrights seeking remuneration for
retrospective and prospective copying
• Victorian departments and agencies have
been participating in surveys to ascertain
volumes
• no rates agreed
Compliance and Victorian s 183
agreements
• no need to notify or pay owners
• gaps
– communication of works and published
editions (CAL)
– public performance of live and recorded music
(APRA)
• voluntary agreements with collecting
societies offer protection
Proposed Victoria APRA
Agreement
• public performance of music in department and agency
workplaces
• retrospective and prospective agreement under ss
183(4) and 183(5)
• will cover departments and agencies listed
• excludes certain performance rights, particular works
and specified events
• individual site/department or agency licences may need
to be continued
• whole of government rate being negotiated
CAL’s new GovCopy Licence
• for non-Crown bodies and local government
• allows hardcopy and digital reproduction, faxing, supply
of hardcopies and limited (internal) communication
• limit on amount to be copied or communicated
• relates to works CAL is authorised to license under
agreement: indemnity from CAL
• remuneration based on discounted s 183A agreement
rates
Other agreements with copyright
owners
• other agreements between department
and agencies and collecting societies
• agreements with agents – eg service
providers licensed by copyright owners
(downstream press clipping licences
provided by CAL)
• agreements directly with owners of
copyright
More Information
• VGSO including our website
www.vgso.vic.gov.au
• CLRC Report on Crown Copyright
• Australian Copyright Council information sheets
and training sessions www.copyright.org.au
• collecting society websites