Copyright Law Review Committee

Crown Copyright

Discussion paper for consultation forum Sydney 27 July 2004.

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Overview

1. In February 2004, the Copyright Law Review Committee (CLRC) released an Issues Paper on its current reference on government ownership of copyright material. The CLRC has received 66 submissions in response to that paper. A list of those who made submissions, and their respective acronyms, is included at the end of this paper.

2. The purpose of this paper is to promote discussion and invite further comments on key matters raised in those submissions and on some preliminary views of the Committee. To promote a focussed discussion, the Committee has not sought, at this stage, further comments on all matters raised in submissions.

3. Key issues explored in this paper are:

4. Those attending the meeting on 27 July 2004 may also wish to refer to the Committee's Issue Paper, which is available with the terms of reference at www.law.gov.au/clrc. The venue for the meeting is the State Library of NSW (Metcalfe Auditorium), Macquarie Street, Sydney.

5. The discussion will be facilitated by the Chairman of the CLRC, Professor James Lahore.

Public policy

6. As the Issues Paper notes (paragraphs 77-78), copyright law is traditionally described as striking a balance between two different objectives: the encouragement of creativity through reward of effort and investment, and the dissemination of its products. The general policy objectives of copyright protection do not necessarily apply in relation to government ownership of copyright. In particular, the Committee notes that in the case of government, it is difficult to see how copyright provides an incentive for creation.

7. Some argue that part of the original rationale for government ownership of copyright material was a need to ensure the integrity and authenticity of certain official government publications. This rationale, to which some submissions referred, developed in England in the early days of printing before the advent of copyright, as part of the Crown's exercise of its prerogative powers. Whatever the historical basis of government ownership of copyright may have been, there is no comprehensive modern formulation of the public policy underpinning that copyright.

8. The changing role of government and the wide scope of material that government produces, in combination with developments in information technology and competition policy (discussed further at paragraphs 30-31) raise questions about the policy basis for protection of government works.

9. The Issues Paper noted (at paragraph 21) that, given the extensive range of government functions, copyright subsists in a broad range of material, including maps, architectural plans, scientific research studies, computer programs, statistics and sound recordings.

10. The increased scope of materials may challenge traditional policy justifications for government copyright. For example, the ACC argued in relation to the 'first ownership provisions' in the Copyright Act (discussed further at paragraphs 29-40):

The original justification for Crown copyright appears to be that copyright subsist in, and the Crown control the use of, materials which were "governmental" in nature ... The expanding role of governments has meant that a provision which initially had a quite limited effect now applies much more broadly.

11. In their submissions to the Committee, most government departments and agencies supported government ownership of copyright material produced by all three arms of government: the executive, legislature and judiciary. Reasons advanced in support of this position included:

12. The Department of Veterans' Affairs made a distinction between executive material and other material produced by government, and stated that there were good policy reasons for executive materials to be free to the Australian public. Other submissions favoured the abolition of copyright in judicial and legislative material, with some supporting the New Zealand model where copyright does not subsist in Bills, legislation, regulations, by-laws, parliamentary debates, reports of select committees, judgments, and reports of commissions or inquiries. However, the New Zealand Government has a statutory duty to make legislation available to the public.

13. The Committee is interested in arguments that copyright assists in ensuring the integrity of government material. Submissions referred to various alternative mechanisms for ensuring the integrity of government material, including: introducing legislative provisions requiring acknowledgment of the source and prohibiting false representations as official material; other legislation including the Trade Practices Act 1974 (Cth) and Racial Vilification Act 1996 (Cth); technological protection measures; digital rights management; and digital object identifiers. Some suggested that it was unlikely that governments would be able to fully safeguard against inappropriate use of their material, but that it was a question of striking a balance, and that governments faced similar difficulties to other copyright owners.

The Committee is interested to discuss the policy basis for government ownership of copyright, taking into account the broad range of material produced by governments (discussed further at paragraphs 18-22 below).

The Committee is also interested to explore arguments that copyright may be used to protect the integrity of material.

Use of copyright to control access to information

14. In the Issues Paper the Committee indicated that it was interested in obtaining views about the use of copyright law by governments to restrict access to information.

15. DCITA provided examples of instances where permission to reproduce copyright materials may be denied on public policy grounds. While DCITA acknowledged that other causes of action might be applicable, it submitted that 'copyright is a more immediate and effective tool for the Commonwealth to exercise in these circumstances'. As evidenced in the DCITA submission, governments have used copyright to restrict access to documents.

16. Freedom of Information (FOI) legislation governs the public's right of access to unpublished government information in each Australian jurisdiction. The object is to provide the Australian community with access to information in the possession of the government. These rights are limited in respect of documents affecting national security, defence, international relations, and documents subject to legal professional privilege. Limitations on access to information provide a means by which government can regulate that access.

17. The advent of FOI laws raises questions about the use of copyright law to deny access to documents and information. The Committee is interested in exploring whether it is appropriate to use government ownership of copyright to regulate access to information, particularly as FOI and privacy laws now provide government with a means of regulating the appropriate use of, and access to, information in the possession of government.

The Committee seeks your views on whether government ownership of copyright should be used as a means of restricting access and controlling use in light of FOI legislation.

Scope of material in which government owns copyright

18. Most submissions were in favour of government owning copyright in all works and subject matter covered by the Copyright Act. The submissions by FACS, WADPC and the WA A-G favoured specific provisions dealing with Crown ownership of broadcasts and published editions. APRA/AMCOS, while in favour of governments owning copyright in all works and subject matter, stated that all assignments by composers (who are members of APRA) to governments of public performance and communications rights in musical works should acknowledge the prior rights of APRA.

19. Some submissions were in favour of placing certain material in the public domain, particularly legislation and other legal material. For example, AustLII identified a class of 'public legal material' (legislation, judicial decisions, law reform and Royal Commission reports) which it considered should be in the public domain. The Law Council of Australia stated that copyright should not subsist in materials created by the judicial, legislative and at least certain parts of the executive arms of government. The ACC also supported placing legislation and judgments in the public domain, or alternatively broadening the exception provisions for such material.

20. The Law Council of Australia and AustLII favoured amendment of the Act along the lines of the New Zealand legislation (discussed above at paragraph 12), so that copyright would not subsist in Bills, Acts, parliamentary debates, judgments and committee reports.

21. Chief Justice Black of the Federal Court of Australia submitted that copyright should not subsist in judgments, court rules, practice notes and notices to practitioners. His Honour noted that the relevant purpose of copyright would not be defeated if there was no copyright in judgments. In a common law system part of the law is found in judgments, which should therefore be freely available. His Honour also stated that there is little chance of inaccurate reproduction in an electronic age. Chief Justice Black did not support the alternative of a waiver system (for reasons discussed below at paragraph 57).

22. On the other hand, Chief Justice Doyle of the Supreme Court of South Australia thought it appropriate that copyright in materials produced by the judiciary be vested in the Crown. However, His Honour considered that the right should not be used to place inappropriate restrictions on the publication and dissemination of judgments. They should be able to be reproduced relatively freely, but it was not unreasonable to seek a return from those who publish for commercial gain.

The Committee is interested in your views on the following:

Prerogative right in the nature of copyright

23. As the Issues Paper noted (paragraph 45), the Crown has a prerogative right in the nature of copyright, which is preserved under section 8A of the Copyright Act.

24. The scope of the Crown prerogative is unclear. The right arose by virtue of the Crown's role as disseminator of the law and (in England) authorised works of the established religion. There is debate in particular over two issues: whether the prerogative extends beyond printing to newer technologies, such as on-line services, and whether judgments fall within the scope of the prerogative. The Committee sought views as to the appropriate nature and scope of prerogative rights, and whether they should be clarified or replaced by legislation.

25. Submissions did not address this issue in great detail. However, most of those that did favoured abolition of the Crown prerogative (Thomson, Law Council of Australia, ACC, Screenrights, CAL, CAUL, ALIA and AustLII). Law Council of Australia, for example, stated that the Copyright Act should be the sole source of copyright law in Australia. Similarly, the ACC argued:

We think that governments should be obliged to ensure that certain materials such as legislation and judgments are freely and easily available to the public. The Copyright Act should assist with this obligation. The Crown prerogative, however, is an outdated and uncertain mechanism for doing so.

26. The ACC noted, however, that the States themselves might have to repeal the common law relating to the Crown prerogative in light of uncertainty over whether the Commonwealth could legislate to do so.

27. A second group of submissions favoured clarification of the Crown prerogative in the nature of copyright (WA A-G, WADPC, CCH, Vi$copy, AIIA, APRA/AMCOS, Vic). Vic Government supported further consideration of section 171 of the UK Copyright Designs and Patents Act 1988 which preserves prerogative rights as a safety net but specifically excludes prerogative rights in Acts of Parliament or Measures. Vic Government expressed concern that replacing the prerogative with statutory provisions 'may inadvertently reduce the protection available to the State over copyright material', but did not elaborate. DHA recommended that further analysis of the prerogative should take into account that different classes of material may require different treatment (for example, large holdings of data compared with sensitive personal information).

28. Two submissions (NSW Government and LIV) stated that the prerogative right in the nature of copyright should remain unaltered. NSW Government claimed that uncertainty in relation to the prerogative 'does not appear to be having a significant adverse impact', and noted that its waiver system in relation to case law and legislation was based in part on the prerogative right.

The Committee is interested in:

Sections 176-178 and 35(6) of the Copyright Act

29. The appropriateness of sections 176-178 and subsection 35(6) is at the crux of the reference. To some extent competition policy has challenged the policy justifications for government ownership of copyright, in particular the first ownership provisions under Part VII of the Copyright Act.

30. The Review of the Intellectual Property Legislation under the Competition Principles Agreement (the Ergas Committee) argued that certain provisions of Part VII were inconsistent with the principle of competitive neutrality, and recommended amendment of section 176 to leave the Crown in the same position as any other contracting party.

31. However, the Committee notes that the Ergas Committee did not explore the issue of Crown copyright in depth. QNRM&E argued that the Ergas Committee's consideration of section 176 did not venture beyond the situation where government commissions the production of copyright material by an independent contractor, such as an architect or artist. QNRM&E submitted that different policy considerations may arise depending on how and why materials are produced by or for government. The Committee notes also that the operation of sections 176-178 is limited to those situations where the general copyright ownership provisions of the Act do not apply.

The Committee is interested in obtaining further views regarding the implications of the principle of competitive neutrality for Crown copyright.

32. Two particular issues arise for further discussion: works made 'by or under the direction or control of the Commonwealth or a State' in sections 176 and 178; and the 'first publication' provision in section 177.

33. Government agencies generally expressed satisfaction with the current legislative scheme. Some government submissions indicated that they generally relied on contract rather than sections 176-178 when dealing with third parties. However, the NSW Government noted that the provisions may be important in relation to such materials as government discussion papers:

While the Crown copyright provisions are of limited relevance in a commercial context, the Crown copyright provisions play an important role in respect of 'core' government functions. For example, where a government appoints a person to prepare a report for public discussion, this may not necessarily be commissioned through a formal contract. Without the protection provided by Crown copyright, there is a risk that the author of the report may retain ownership of the material and government could lose the right to deal with the report for the benefit of the public.

34. Some submissions were concerned that any alteration to sections 176-179 would have a detrimental economic impact on government. DOFA expressed concern that government might pay for the production of intellectual property more than once if the default position were changed, while NSW AGD stated that the absence of Crown copyright could lead to the public paying for the production of information by government and then its secondary sale by private vendors. WADIR argued that changes would impede economic development. FACS stated that:

... the operation of sections 176-179 provide a greater degree of certainty and recognise the unique situation of the government who direct and control the creation of material but do not control the content.

35. FACS argued that while large contracts tend to address copyright ownership, smaller contracts or agreements covering temporary staff may not. Uncertainty over ownership of copyright in such circumstances could lead to a failure to exploit material fully and thus be a waste of taxpayers' funds. DFAT submitted that the provisions were appropriate and adequate, and should not be amended.

36. NAA did not favour amendment of the existing scheme, claiming it was a matter for government policy to determine whether to claim copyright in material created under its direction or control. The ALRC expressed concern that any alteration of section 176 would result in the need for detailed intellectual property provisions in government contracts which would increase costs and increase the need for whole-of-government best practice guidelines.

37. Another reason cited for the maintenance of the current regime was to ensure authenticity of government information. ALIA and LIV took the view that governments must have the ability to acquire copyright to ensure that they have control over the reproduction, modification, adaptation and publication of copyright works.

38. Vic Government took the view that the existing scheme was appropriate but stated that consideration should be given to the UK reforms effected by the Copyright Designs and Patents Act 1988. Vic Government considered that sections 176-178 could be improved by:

39. The WA A-G recommended that the phrase 'under the direction or control' in sections 176 and 178 be clarified to include material created by employees, contractors and volunteers. They also noted that section 177 has little practical application and should be amended to apply only in cases where a connecting factor is absent. The WA A-G also favoured clarification of the relationship between Part III and Part VII of the Act.

40. Copyright owner interests generally supported governments holding copyright in the same way as other parties. To achieve this, they favoured amending provisions that place the Crown in a privileged position compared with other parties. ACC, APRA/AMCOS, CAL, Screenrights, LSWA, ALCC, ADA, ALCA, NAVA, Vi$copy, AIIA, Thomson and ABC took the view that the first ownership rules in sections 176-178 should be abolished.

The Committee is interested in obtaining further information about situations where government has relied on sections 176-178 for copyright ownership.

The Committee is interested in how sections 176-178 might be amended:

What entities should be included as part of the 'Commonwealth and or a State'?

41. Submissions generally acknowledged uncertainty in this area and favoured clarification. ACC, Screenrights, CAL, ALRC, FACS, Thomson, ALCC, ADA and CCH supported the idea of a list of relevant organisations similar to the Crown bodies list in the United Kingdom. CASL and LIV acknowledged the benefits of this suggestion, but noted the additional administrative burden it would create in management of the list.

42. LIV recommended that the Act be amended to include a list of non-exhaustive factors for courts to consider in determining the status of an entity. Vic Government took the view that this problem should not be the object of legislation 'given that courts, over a considerable period of time, have evolved a series of tests which define what or what is not part of the State'.

43. The Committee is considering another reform which may address the concerns over uncertainty on which entities should be included as part of the 'Commonwealth and or a State'. This option would involve the Attorney-General being responsible for the declaration of the status of an entity under Part VII. This option would operate in a similar way to the process of declaring collecting societies.

The Committee is considering three possible options to redress the concerns raised in the submissions:

The Committee seeks your views on how such mechanisms could work in practice.

Exceptions to infringement

44. The Committee considers that public policy issues associated with government ownership of copyright and the type of material in which the government owns copyright are important when considering exceptions to copyright infringement.

45. AIIA, WA A-G, LIV and APRA/AMCOS stated that the existing provisions are adequate. CCH, Thomson and ACC submitted that the exceptions should apply in the same way as they do to non-government copyright material.

46. NAA, AVCC, DHA, FLAG, CAUL, Swinburne University of Technology and ABC favoured wider exceptions. Generally, these submitters called for a blanket licence or statutory waiver allowing the reproduction and communication of government copyright material. Some submissions such as WADPC and Vic Government argued for wider exceptions based on the organisation rather than the material. However, ACC stated that exceptions should be based on the type of material and not on who is the owner of copyright in the material. Swinburne University of Technology and DHA held similar views. Swinburne University of Technology argued for a blanket licence allowing reproduction and dissemination of all government material for non-governmental purposes. DHA submitted that exceptions should consider issues of public health, bio-terrorism and national security.

47. A couple of submissions raised the issue of a public interest defence if the existing defences did not sufficiently allow freedom of communication about government and political matters, impliedly protected under the Constitution.

48. The ABC submitted that a range of changes should be made to improve public access to government material. It supported a compulsory licensing scheme to permit broader access to material on the public record such as archival footage.

The Committee is interested to explore further when exceptions should apply, taking into consideration the public policy of government ownership of copyright and the scope of material in which governments own copyright.

49. The Issues Paper discussed (paragraphs 43-44) section 182A and blanket licences that have been issued to educational institutions and publishers for multiple reproductions. If copyright were to subsist in all government material, the Committee sought views on whether section 182A should be amended or alternatively a blanket licence scheme introduced.

Section 182A

50. In addition to the general exceptions, section 182A of the Copyright Act permits reproductions of certain primary legal materials. This section only allows for a reprographic reproduction for non-commercial purposes.

51. A number of submissions including Vic Government, LIV and WADPC favoured retaining section 182A in its current form. However, the majority of submitters, including Vi$copy, APLA, CAUL, ALCC, ADA, University of Melbourne, FLAG, AVCC, ACC, ALCA, LSWA, FACS, Department of Veterans' Affairs, CCH, Swinburne University of Technology and WA A-G supported the amendment of this section.

52. Swinburne University of Technology, ALPA, WA A-G and CCH were generally of the view that section 182A should allow multiple copies. Some submissions argued for the widening of the section to allow reproduction of a greater range of government copyright material. LSWA recommended that section 182A be amended to include parliamentary debates and reports and to cover the making of copies other than by reprography. It was further submitted that where reproduction was for a commercial purpose, the Crown should be able to grant or decline permission and impose conditions on use. ALPA submitted that section 182A should apply to executive and judicial material.

53. ACC supported the extension of the existing exception subject to conditions to ensure the authenticity of the material which would operate similar to the NSW and NT waivers.

54. CAL and Thomson submitted that section 182A adequately provides for public access to the law. CAL expressed concern that under this exception commercial versions of legal materials are being reproduced along with official versions. CAL favoured amendment of section 182A to clarify that it only applies to official versions.

55. WADPC, the Department of the House of Representatives and NSW Government expressed concern that if section 182A were expanded, commercial publishers would be able to exploit the provision on a for-profit basis.

Blanket licence scheme

56. The University of Melbourne, ALCC and ADA supported a blanket licence for legislative and judicial material on the condition that the material was accurately reproduced and did not claim to be an official version.

57. As mentioned above at paragraph 21, Chief Justice Black of the Federal Court of Australia raised the issue of copyright in judgments. His Honour expressed the view that a unilateral waiver by government allowing the reproduction of judicial material would be unsatisfactory:

... first, because it leaves untouched the possibility that judges and not the government own the copyright in judgments, and, secondly, because some governments might not waive copyright.

58. It was WA Government's clear view that whether or not to grant a waiver was a matter for each jurisdiction and not for legislation. NSW Government favoured the continuation of its waiver system. Another submission stated that it was still possible for re-publications to contain inaccuracies or to mislead the public under the NSW model.

The Committee is interested in your views on whether a blanket licence scheme or amendment of section 182A is more appropriate in providing access to certain government copyright material.

Management of Crown copyright

59. Some submissions the Committee received provided interesting examples of how different policies applied in the Australian jurisdictions. The submission of LexisNexis illustrated how these disparate policies impacted on its operation, providing a case study on their licensing experience with WA Government. In that State they have had to negotiate two licences for hard copy and electronic reproductions. LexisNexis stated that in negotiations, the WA Attorney-General said that free permission was given to reproduce WA legislation if there was value adding. This has led to discussion and negotiation on the definition of 'value adding'. LexisNexis stated that they have found this condition onerous.

The Committee seeks other examples of the impact of the different management systems of Australian governments.

60. Most submissions supported uniformity in government practice as a desirable goal. Submissions from the States supported uniformity in principle but were concerned to protect the States' position. NSW Government noted that the benefits would have to outweigh the likely costs, while WADPC and WA A-G said that uniformity should be achieved by agreement between the relevant parties.

61. At the Commonwealth level, DOFA noted that each agency should administer its own copyright and that CCA should only provide an advisory role. NAA favoured the establishment of two central agencies for the administration of Commonwealth copyright material.

International government copyright management models

62. Several submissions referred to management models in other countries. FLAG, ACC, AustLII, the University of Melbourne and the Department of the House of Representatives favoured a USA type model, whereby legal and judicial material would be in the public domain. However, the Committee notes that this model is not ideal, as individual states in the USA are free to claim copyright in all material, resulting in inconsistent management of copyright in government material.

63. Thomson, LexisNexis and the Bureau of Meteorology favoured the UK approach. ACC suggested that the UK model was a useful starting point, while noting that Australia's federal system may present difficulties. Law Council of Australia noted that the UK model relies on a centralised office and for that reason it favoured the abolition of government ownership of copyright material.

64. Other submissions supported the Canadian model, with Vic Government supporting further investigation 'given that Canada is also a Federal State and has a shared legal history with Australia'. The Committee notes that Canada has not dealt with the issue of Crown copyright that involves the Provinces and Territories, and that none of the models to which submissions referred has resolved difficulties arising from a federal system.

The Committee is interested in obtaining views on what would be a effective management system for Crown copyright.

List of submitters and acronyms

Sub no. Submitter Abbreviation / acronym

1 Australian National Audit Office ANAO

2 Royal Australian Mint the Mint

3 Australian Law Reform Commission ALRC

4 Australian Institute of Criminology AIC

5 The University of Melbourne

6 McGraw Hill Education McGraw Hill

7 Council of Australian University Librarians CAUL

8 Ron Ross

9 WA State Solicitor's Office WASSO

10 CCH Australia Limited CCH

11 LexisNexis Australia LexisNexis

12 Swinburne University of Technology

13 Thomson Legal & Regulatory Limited Thomson

14 ANZLIC - the Spatial Information Council ANZLIC

15 Film Australia

16 WA Department of Land Information WADLI

17 Professor Brian Fitzgerald

18 Bureau of Meteorology

19 Australian Libraries' Copyright Committee ALCC
and
Australian Digital Alliance ADA

20 Australian Spatial Copyright Collections Limited ASCC

21 Australian Information Industry Association AIIA

22 Association of Parliamentary Libraries of Australasia APLA

23 Department of the House of Representatives

24 Vi$copy Ltd Vi$copy

25 Australasian Legal Information Institute AustLII

26 National Library of Australia NLA

27 Australian Copyright Council ACC

28 AEShareNet Limited AESN

29 WA Department of the Premier and Cabinet WADPC

30 Council of Australian State Libraries CASL

31 Screenrights

32 Australian Library and Information Association ALIA

33 Law Council of Australia

34 Attorney-General for Western Australia WA A-G

35 Western Australian Department of Industry and Resources WADIR

36 Department of Family and Community Services FACS

37 National Archives of Australia NAA

38 Department of Finance and Administration DOFA

39 Hon John Doyle, Chief Justice of South Australia

40 National Association for the Visual Arts Ltd NAVA

41 Australian Film Commission AFC

42 Law Institute of Victoria LIV

43 Department of Education, Science and Training DEST

44 The Law Society of Western Australia LSWA

45 Department of Health and Ageing DHA

46 Flexible Learning Advisory Group FLAG

47 Arts Law Centre of Australia ALCA

48 Copyright Agency Limited CAL

49 Australian Vice-Chancellors' Committee AVCC

50 Australia Council for the Arts

51 Department of Foreign Affairs and Trade DFAT

52 South Australian Attorney-General SA A-G

53 Australian Society of Archivists Inc ASA

54 Australian Broadcasting Corporation ABC

55 Department of Veterans' Affairs

56 NSW Government

57 NSW Attorney General's Department NSW AG

58 Judith Bannister

59 Australasian Performing Right Association APRA
and
Australasian Mechanical Copyright Owners Society AMCOS

60 Department of Communications, Information Technology and the Arts DCITA

61 Federal Court of Australia

62 Ministerial Council on Education, Employment, Training and Youth Affairs MCEETYA
Schools Resourcing Taskforce

63 Australian Electoral Commission AEC

64 Victorian Government

65 Queensland Department of Natural Resources, Mines and Energy QNRM&E

66 The Law Society of New South Wales LSNSW