Copyright Law Review Committee

Crown Copyright

Crown Copyright
Contents

Membership of the Committee

Terms of reference

Abbreviations

Executive Summary

Special Crown ownership provisions in the Copyright Act

Duration of Crown copyright

Employees’ works

Public policy considerations

Abolition of copyright in certain materials

Duty to disseminate

Prerogative rights

Exceptions to copyright infringement

Whether an entity is part of the ‘Commonwealth’ or ‘State’

Moral rights

Crown copyright management

Chapter 1. Background to the inquiry

Key factors leading to the inquiry

Conduct of the inquiry

Scope of this report

Terminology used in this report

Chapter 2. The scope of Crown copyright

‘Crown copyright’

What is meant by ‘the Crown’

‘Crown in right of the Commonwealth or State’

‘Commonwealth’ and ‘State’

The scope of material in which government owns copyright

Chapter 3. Crown ownership of copyright

The current law in Australia

Legislative power with respect to copyright

Australia’s international obligations

The Copyright Act 1968

General copyright ownership

Crown prerogative

Part VII of the Act

Duration of copyright in government works

History of Crown copyright

A brief history of copyright law in England

Crown ownership under the 1911 UK Act

The 1956 UK Act

The Copyright Act 1968 (C’th)

Reviews of Crown copyright in other common law countries

United Kingdom

Other common law countries

The United States of America

Chapter 4. Public policy issues

Competition policy – the Ergas Committee’s report

Evidence to the Committee on the Ergas recommendation

The copyright balance

Policy issues

The range of material may affect policy considerations

Providing an incentive to create

Ensuring access to government copyright material

Protecting the integrity of information

Allowing cost-effective administration of government

Other public policy reasons for government ownership

Is copyright ownership of commissioned material necessary?

Chapter 5. Special Crown ownership provisions of the Act

The scope of the Part VII provisions: ownership of material made under the direction of the Crown

Possible interpretations of sections 176 and 178

Similar provisions in the Copyright Act 1956 (UK)

Arguments for repeal of subsections 176(1) and 178(1)

The ‘direction or control’ test

Works first published under the direction of the Crown

Who is the ‘Commonwealth’ in Part VII?

Relationship between Part VII and the rest of the Act

Section 177 and subsection 29(6)

Criticism of the Part VII provisions

Support for the Part VII provisions

The position in other common law countries

United Kingdom

Ireland

New Zealand

Canada

Chapter 6. The Crown prerogative

The history of the Crown prerogative

Is there a duty to disseminate information?

The scope of the prerogative

Judgments

New technologies

Evidence to the Committee

Are there any constraints on the Commonwealth’s power to legislate?

Statutory alternatives to the Crown prerogative

Chapter 7. Exceptions to infringement

Current exceptions under the Copyright Act

Section 182A – a single reprographic reproduction

Blanket licence scheme

Public interest defences and freedom of political communication

Chapter 8. Which government entities should be considered the ‘Commonwealth’ and ‘State’?

Terms used in the Act

Types of government entities

Common law

‘Shield of the Crown’ test

‘Federal’ test

Case study: the National Gallery and the National Museum

A non-exhaustive list of factors to be applied by the courts

The ‘fair dealing’ model

Possible factors to include

Other options for reform

Declaration of entities by the Attorney-General

Non-exhaustive list of entities

Chapter 9. The Committee’s views

Ownership of copyright under Part VII

Employees’ work

Abolition of copyright in certain materials

Crown prerogative

Exceptions to copyright infringement

Defining whether an entity is the ‘Commonwealth’ or ‘State’

Who owns copyright: the entity or the executive government?

Chapter 10. Moral rights

What are moral rights?

Evidence to the Committee

The UK position

The Committee’s view

Chapter 11. Management of Crown copyright

Commonwealth Crown copyright management

The Australian National Audit Office’s report

Evidence to the Committee

Crown copyright management in the States and Territories

Policies and guidelines

A case study: primary legal materials

The Commonwealth

The States and Territories

Electronic dissemination

The views of legal publishers

International developments in Crown copyright management

The UK

Directive on the re-use of public information in the EU

New Zealand

Canada

The US

The views of State governments

The Committee’s views

The need for education for government and its employees

Additional Comments – Mr John Gilchrist

Appendix 1. List of submissions

Appendix 2. List of those who participated in the Committee’s consultations

Public forum, Sydney, 27 July 2004

Perth, 20 August 2004

Melbourne, 24 August 2004

Appendix 3. NSW waivers of copyright in judgments and legislation

Notice: Copyright in judicial decisions

Notice: Copyright in legislation and other material

Bibliography

Cases

Legislation

International agreements

Articles

Books, reports and other publications

LIST OF TABLES

Table 1 Types of material produced by or for government

Table 2 Comparison of terms of copyright protection under the Copyright Act 1968

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Membership of the Committee

Professor James Lahore, Chairman

Ms Susan Bridge, Chief Executive, Australian Publishers Association

Associate Professor Allan Brown, Griffith Business School, Griffith University

Mr John Gilchrist, Senior Lecturer in Law, University of Canberra

Mr Nigel Hardiman, Convenor of the States and Territories Copyright Use Group and Senior Project Officer of the ACT Department of Urban Services

Professor Michael Pendleton, School of Law, Murdoch University

Ms Helen Daniels, Assistant Secretary, Copyright Law Branch, Attorney-General’s Department

Secretariat

Ms Louise Gell, Director (June 2004 — January 2005)

Ms Fiona Phillips, Director (December 2003 — May 2004)

Mr Nelson de Sousa, Legal Officer (January 2004 — January 2005)

Ms Lani Gibbins, Legal Officer (December 2003 — January 2004)

Ms Mary Fleming, Support Officer (from February 2004)

Ms Stephanie Crathern, Support Officer (December 2003 — January 2004)

Terms of reference

Ownership of copyright by the Commonwealth, States and Territories (‘the Government’) is dealt with in Part VII of the Copyright Act 1968 (Cth).

Under this Part, the Government is the owner of copyright in any work, film or sound recording made by, or under the direction or control of, the Government. The Government is also the owner of copyright in any work first published by, or under the direction or control of, the Government. In addition, copyright subsists in material which would not otherwise be copyright by virtue of it being made by, or under the direction or control of, the Government. These provisions are subject to any agreement with the author or maker of the copyright material otherwise assigning copyright.

The Government also has a prerogative right in the nature of copyright, which is preserved under s 8A of the Act and is not affected by other provisions of the Act.

Other countries take widely differing approaches to protection of material produced by governments. Within Australia there is a variety of States’ practices in relation to management and control of copyright material.

In 2000 the Review of Intellectual Property Legislation under the Competition Principles Agreement (the Ergas Committee) recommended that s 176 of the Copyright Act be amended to ensure that the Government is not provided with preferential treatment compared with other parties.¹ The Government’s response to this recommendation supported the objective of eliminating unjustified preferential treatment, but opted to develop best practice policy guidelines rather than amend the Act. In addition, calls have been made for the amendment of s 177 of the Act. This section vests copyright ownership in the Government if it is the first to publish, or if first publication occurs under the direction or control of the Government.

1. Against that background, the Copyright Law Review Committee (the Committee) is to inquire into and report on the appropriateness of the law in Australia in relation to government ownership of copyright material, with particular regard to:

the appropriate scope and definition of ‘the Commonwealth or a State’ and whether statutory bodies established indirectly under the legislation of the Commonwealth, States and Territories that have legal capacity to acquire, hold and dispose of real or personal property should be treated differently to those that do not, for the purposes of copyright ownership,
the extent to which statutory bodies that are emanations or agencies of government have entered into agreements with the government for assignment to them of copyright in existing and future materials produced by them,
whether the Copyright Act should make express provision vesting copyright in materials made by, or under the direction or control of, the Parliament of the Commonwealth, a State or Territory in that Parliament,
whether the prerogative rights in the nature of copyright subsisting in legislation should be clarified or replaced by legislation defining the nature of copyright in such materials and vesting it in the Government, and
whether the licence in s 182A to reproduce legislative materials and the decisions of courts and tribunals should be expanded to allow multiple reproduction.

2. In doing so the Committee will consider:

the extent and appropriateness of reliance by government on copyright to control access to, and/ or use of, information,
the underlying social and economic problems government ownership of copyright seeks to address,
the social and economic objectives of government ownership of copyright material,
the implications of privatisation of government bodies/agencies, and outsourcing of government functions, for ownership and public right of access to copyright material produced as part of a government function,
international comparisons,
the effect of new technologies,
constitutional issues, if any,
legislative and non-legislative options for reform,
the costs and benefits of the options for reform on the different groups affected,
a preferred arrangement for government ownership of copyright material, if any, in light of the objectives set out in (c),
a strategy to implement and review the Committee’s preferred option, and
any other incidental matters which are able to be addressed within the time frame for the reference.

3. In undertaking the inquiry the Committee will have regard to:
1. any amendments to the Copyright Act that are introduced into Parliament, or which the Commonwealth announces are proposed to be introduced or are being considered,
2. the recommendations and findings of relevant Government reviews or inquiries and any reports by or views of relevant expert advisory bodies and other interests,
3. Australia’s relevant international obligations, including those in treaties and other agreements to which Australia is considering becoming a party,
4. the role and nature of government and the need for government to be able to be accountable and fulfil its responsibilities efficiently and effectively,
5. the approach of each Australian government to ownership of copyright material,
6. the role of councils of law reporting in the exercise of copyright in judgments and decisions of courts and tribunals,
7. the need to analyse and, as far as practicable, quantify the benefits, costs and overall effects of the options identified by the Committee in light of the principle that legislation which restricts competition should be retained or enacted only if the benefits to the community as a whole outweigh the costs, and if the objectives of the legislation can be achieved only by restricting competition,
8. the effect on the operation and complexity of any future copyright legislation, including any transitional provisions, and
9. the policy that the compliance cost and paperwork burden on small business should be reduced where feasible.

4. In undertaking the review, the Committee is to advertise widely and consult with key interest groups and affected parties.

5. In undertaking the review and preparing its report and associated recommendations, the Committee is to report to the Attorney-General by 4 December 2004.

Abbreviations

1911 UK Act-------Copyright Act 1911 (Imperial)

1956 UK Act ------Copyright Act 1956 (UK)

ABC ----------------Australian Broadcasting Corporation

ACC ----------------Australian Copyright Council

ADA ----------------Australian Digital Alliance

ARC ----------------Administrative Review Council

AFC ----------------Australian Film Commission

AIC ---------------- Australian Institute of Criminology

AIIA ----------------Australian Information Industry Association

Arts Law ----------Arts Law Centre of Australia

ALCC ------------- -Australian Libraries’ Copyright Committee

ALIA ----------------Australian Library and Information Association

ALRC ---------------Australian Law Reform Commission

AMCOS ------------Australasian Mechanical Copyright Owners Society

ANAO ------ ------ Australian National Audit Office

ANZLIC ------ -----ANZLIC — the Spatial Information Council

APLA ------ ------- Association of Parliamentary Libraries of Australasia

APRA ------ -------Australasian Performing Right Association

AustLII ------ ---- Australasian Legal Information Institute

AVCC ------ ------ Australian Vice-Chancellors’ Committee

CAC Act ------ ----Commonwealth Authorities and Companies Act 1997 (Cth)

CAL ------ -------- Copyright Agency Limited

CASL------ --------Council of Australian State Libraries

CAUL------ --------Council of Australian University Librarians

CCA------ -------- Commonwealth Copyright Administration

CCH------ -------- CCH Australia Limited

CLRC------ --------Copyright Law Review Committee

DCITA------ -------Department of Communications, Information Technology and the Arts

DEST------ --------Department of Education, Science and Training

DEWR------ ------ Department of Employment and Workplace Relations

DOFA------ --- - --Department of Finance and Administration

DOI----- --- - -----Digital Object Identifier

Ergas Committee ----- Intellectual Property and Competition Review Committee, 2000

FACS----- --- - ----Department of Family and Community Services

FLAG----- --- - -----Flexible Learning Advisory Group

FMA Act ----- --- - -Financial Management and Accountability Act 1997 (Cth)

FOI----- --- - -------freedom of information

FOI Act----- --- - ---Freedom of Information Act 1982 (Cth)

Franki Committee ----- Copyright Law Committee on Reprographic Reproduction, 1976

GPO----- --- - ------Government Printing Office

Gregory Committee ----- Copyright Committee (UK), 1952

HMSO----- --- - -----Her Majesty’s Stationery Office

IAR----- --- - --------Information Assets Register

ICT----- --- - --------information communications technology

IP----- --- - ---- -----intellectual property

IT----- --- - - ---- ---information technology

LexisNexis----- --- -LexisNexis Australia

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

National Archives ----- National Archives of Australia

NAVA----- --- - ------National Association for the Visual Arts Ltd

NOIE----- --- - ------National Office of the Information Economy

NZ----- --- - ---------New Zealand

OQPC----- --- - -----Office of the Queensland Parliamentary Counsel

RAIA----- --- - -------The Royal Australian Institute of Architects

Spicer Committee--Committee appointed by the Attorney-General to consider what alterations are desirable in the copyright law of the Commonwealth, 1959

Thomson----- --- - --Thomson Legal & Regulatory Limited

TRIPS Agreement ----- Agreement on Trade-Related Aspects of Intellectual Property Rights

UK----- --- - ------ ---United Kingdom

UN----- --- - --------- United Nations

US----- --- - --------- United States of America

US FTA Act----- --- - US Free Trade Agreement Implementation Act 2004

Whitford Committee ----- Committee to consider the law on copyright and designs (UK), 1977

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The Copyright Law Review Committee is a specialist advisory body established in 1983 to inquire into and report to Government on specific copyright law issues.

Note: The law as contained in this report is stated as at January 2005.