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Public Access to Copyright Works Submitted to Government: Copyright Agency Ltd V New South Wales and the Implications for Information Access

Published online by Cambridge University Press:  24 January 2025

Judith Bannister
Judith Bannister*
Affiliation:
Flinders University Law School
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Extract

Governments create and commission copyright protected material as part of their core administrative functions and they sometimes compete with the private sector as developers of commercially valuable assets. Governments also use under licence copyright protected material owned and created by others. A wide range of copyright material is also submitted to State and federal governments when individuals and corporations comply with legal obligations or conduct business with government agencies. That material submitted to governments, and the information it contains, can have value that extends beyond the initial transaction. Governments can add value by compiling and processing the information and then charge the public for access. Material submitted to government is also an important source of information about how governments function. When the principles of open government and transparency are discussed, the primary focus is usually upon access to information recorded in documents created within government agencies. However, it is often necessary to extend access to documents received by agencies. Copyright in that material will be privately owned and that can conflict with public access.

Type
Research Article
Information
Federal Law Review , Volume 36 , Issue 3 , September 2008 , pp. 381 - 398
Copyright
Copyright © 2008 The Australian National University

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References

1 (2008) 233 CLR 279 (‘the surveyors’ case’).

2 Copyright Agency Ltd v New South Wales (2007) 159 FCR 213.

3 Ann, Monotti, ‘Nature and Basis of Crown Copyright in Official Publications’ [1992] 14(9) European Intellectual Property Review 305Google Scholar, 306. See also: Olivia, Mitchell, ‘Crown Copyright in Legislation’ (1991) 21 Victoria University of Wellington Law Review 351Google Scholar, 357.

4 Copyright Act 1968 (Cth) s 8A.

5 Copyright Act 1968 (Cth) ss 176–178.

6 (1980) 147 CLR 39.

7 Ibid 58.

8 Known as the idea/expression dichotomy: see discussion in Staniforth, Ricketson and Christopher, Creswell, The Law of Intellectual Property: Copyright, Designs and Confidential Information (2nd revised ed, 2002)Google Scholar [1.95].

9 There is a wealth of material that discusses potential conflict between copyright and freedom of expression. See, eg, Patricia, Loughlan, ‘The Marketplace of Ideas and the Idea-Expression Distinction of Copyright Law’ (2002) 23 Adelaide Law Review 29Google Scholar; Jonathan, Griffiths and Uma, Suthersanen (eds), Copyright and Free Speech; Comparative and International Analyses (2005)Google Scholar; Paul, Torremans (ed), Copyright and Human Rights: Freedom of Expression – Intellectual Property – Privacy (2004)Google Scholar. For a recent analysis from the United Kingdom see: Christina, Angelopoulos, ‘Freedom of Expression and Copyright: The Double Balancing Act’ (2008) 3 Intellectual Property Quarterly 328Google Scholar.

10 Ashdown v Telegraph Group [2002] Ch 149 (‘Ashdown’).

11 Ibid 163.

12 Ibid 165–166.

13 Ibid 170.

14 Ibid 175.

15 Ibid 176. The defence of fair dealing for reporting current events failed.

16 See Human Rights Act 1998 (UK) c 42.

17 In Commonwealth v Fairfax & Sons Ltd (1980) 147 CLR 39, 57 Justice Mason suggested that a public interest defence might be available in copyright cases in Australia but he was not prepared to ‘break new ground’ and recognise it in that case. In the Federal Court case Collier Constructions Pty Ltd v Foskett Pty Ltd (1990) 19 IPR 44, 55 Justice Gummow stated that there is no public interest defence to copyright infringement in Australia. The Act includes a complex collection of exceptions to infringement and ‘[i]t would be an odd result if this complex of provisions, reflecting an accommodation by the legislature of a range of competing interests, were overlaid with some defence springing from the general law and defined with none of the precision apparent in the legislation’. The courts do have the discretion to determine the appropriate form of relief and in some cases may not grant an injunction. See Achos Pty Ltd v RA Bashford Consulting Pty Ltd (1997) 37 IPR 542, 569–70 involving information relating to public safety.

18 (1980) 147 CLR 39.

19 R, Walsh and G, Munster, State Secrets: a Detailed Assessment of the Book They Banned, Documents on Australian Defence and Foreign Policy 1968–1975 (1982)Google Scholar, discussed in: Copyright Law Review Committee, Parliament of Australia, Crown Copyright (2005) 40Google Scholar.

20 Copyright Law Review Committee, above n 19.

21 Ibid 112.

22 (2007) 159 FCR 213; (2008) 233 CLR 279.

23 Ibid.

24 In an earlier case before the Copyright Tribunal, an application by the Australian Spatial Copyright Collections Ltd to be declared a collecting society for government copying of survey plans was refused: Reference by Australian Spatial Copyright Collections Ltd [2004] ACopyT 1.

25 Plans drafted by surveyors are categorised as ‘artistic works’ and protected by Australian copyright law: Copyright Act 1968 (Cth) s 10 definition of ‘artistic works’. Maps and plans have long been protected by copyright: Sands & MacDougall Pty Ltd v Robinson (1917) 23 CLR 49. See discussion in Ricketson and Creswell, above n 8, [7.370]–[7.375].

26 Copyright Agency Ltd v New South Wales (2007) 159 FCR 213.

27 Copyright Act 1968 (Cth) s 35(2).

28 Copyright Act 1968 (Cth) s 183, 183A.

29 Copyright Agency Ltd v New South Wales (2007) 159 FCR 213, 217–8.

30 Plans are held electronically in the Document and Integrated Imaging Management System (‘DIIMS’). Information derived from the plans is entered in the Digital Cadastral Database (‘DCDB’). The entire process is explained in great detail in the judgment of Emmett J: Copyright Agency Ltd v New South Wales (2007) 159 FCR 213, 227–37.

31 Ibid 237.

32 Copyright Act 1968 (Cth) ss 14, 36.

33 Copyright Agency Ltd v New South Wales (2007) 159 FCR 213, 245.

34 Copyright Agency Ltd v New South Wales [2007] HCA Trans 700.

35 Copyright Act 1968 (Cth) s 35(2).

36 Copyright Act 1968 (Cth) s 35(6).

37 For instance, photographs commissioned for private or domestic purposes (Copyright Act 1968 (Cth) s 35(5)) and commissioned films and sound recordings (Copyright Act 1968 (Cth) ss 97(3), 98(3)).

38 Copyright Act 1968 (Cth) s 176(2).

39 Copyright Agency Ltd v New South Wales (2007) 159 FCR 213, 240.

40 Ibid 241.

41 With the other judges agreeing.

42 Copyright Agency Ltd v New South Wales (2007) 159 FCR 213, 238.

43 Ibid.

44 Copyright Act 1968 (Cth) s 177.

45 Copyright Law Review Committee, above n 19, 74.

46 Copyright Act 1968 (Cth) s 179.

47 Copyright Law Review Committee, above n 19, 128.

48 Copyright Act 1968 (Cth) s 177.

49 Copyright Act 1968 (Cth) s 29(6) – (7). An act done with the licence of the owner is one that has been authorised by the owner: Copyright Act 1968 (Cth) s 15.

50 Monotti, above n 3, 314.

51 Copyright Law Review Committee, above n 19, 77–78.

52 Constitution s 51 (xxxi); Copyright Law Review Committee, above n 19, 78.

53 Copyright Agency Ltd v New South Wales (2007) 159 FCR 213, 243.

54 Copyright Act 1968 (Cth) s 183(8).

55 With the other judges agreeing.

56 Copyright Agency Ltd v New South Wales (2007) 159 FCR 213, 242.

57 Copyright Act 1968 (Cth) s 29(1), (4).

58 Copyright Agency Ltd v New South Wales (2007) 159 FCR 213, 242.

59 Copyright Act 1968 (Cth) s 29.

60 Francis, Day & Hunter v Feldman & Co [1914] 2 Ch 728, 733.

61 Transcript of Proceedings, Copyright Agency Ltd v New South Wales (High Court of Australia, Mr D K Catterns, 16 November 2007); [2007] HCA Trans 700.

62 See discussion in Part 5 ‘Consequences of Publication’ in Judith, Bannister ‘Crossing the Public/Private Divide: Rethinking the Concept of “Publication” in an Electronic Environment’ (2000) 18 Copyright Reporter 152, 164Google Scholar.

63 See above, text accompanying n 50.

64 Copyright Agency Ltd v New South Wales (2007) 159 FCR 213, 242.

65 See: Jill, McKeough, Andrew, Stewart, and Philip, Griffith, Intellectual Property in Australia (3rd ed, 2004) 197Google Scholar. The CLRC also considered the possibility that ‘schools, municipal councils and land management councils’ might be listed amongst State government entities included as part of the Crown: Copyright Law Review Committee, above n 19, 115.

66 The Crown copyright provisions were reviewed by the CLRC in 2005. The CLRC would not have prevented governments from owning copyright per se, but argued that there is ‘no justification for government to have a privileged position compared with other copyright owners’. The CLRC was particularly critical of Crown ownership arising from first publication. The CLRC recommended repeal of the special statutory ownership provisions: Copyright Law Review Committee, above n 19, 127-128, 129. The CLRC was subsequently disbanded and its recommendations about Crown copyright have not been implemented.

67 Copyright Act 1968 (Cth) ss 182B–183E.

68 Copyright Act 1968 (Cth) s 183.

69 ‘Unless it would be contrary to the public interest to do so’: Copyright Act 1968 (Cth) s 183(4).

70 Copyright Act 1968 (Cth) s 183(5). If agreement cannot be reached terms are fixed by the Copyright Tribunal.

71 Copyright Act 1968 (Cth) s 183A.

72 Copyright Agency Ltd v New South Wales (2007) 159 FCR 213, 243.

73 Ibid 244.

74 Ibid 243-4.

75 Ibid 217–8.

76 Copyright Agency Ltd v New South Wales (2008) 233 CLR 279.

77 Ibid 301.

78 Ibid 305 .

79 Ibid 305.

80 Ibid 296.

81 Ibid 296.

82 Transcript of Proceedings, Copyright Agency Ltd v New South Wales (High Court of Australia, Mr D K Catterns, 23 April 2008); [2008] HCA Trans 174 [760].

83 Transcript of Proceedings, Copyright Agency Ltd v New South Wales (High Court of Australia, Mr D K Catterns, 16 November 2007); [2007] HCA Trans 700.

84 This would then raise the problem for copyright owners of first publication by the Crown discussed above in part IV(B). A problem that is neatly avoided if no government uses are authorised by owners because the statutory licence governs everything.

85 Copyright Agency Ltd v New South Wales (2008) 233 CLR 279, 301.

86 Ibid 305.

87 Ibid 305.

88 Ibid 306.

89 Ibid 305.

90 Copyright Act 1968 (Cth) s 183(4) and (5).

91 Copyright Agency Ltd v New South Wales (2008) 233 CLR 279, 305-306.

92 Freedom of Information Act 1982 (Cth); Freedom of Information Act 1982 (Vic); Freedom of Information Act 1989 (NSW); Freedom of Information Act 1989 (ACT); Freedom of Information Act 1991 (SA); Freedom of Information Act 1991 (Tas); Freedom of Information Act 1992 (Qld); Freedom of Information 1992 (WA); Information Act 2002 (NT).

93 ‘Document’ is defined broadly in the legislation and includes information stored electronically and in other media, and covers writing and other images, figures, and symbols that have meaning to persons qualified to interpret them. See Freedom of Information Act 1982 (Cth) s 4; Freedom of Information Act 1989 (NSW) s 6; Freedom of Information Act 1992 (Qld) s 7; Freedom of Information Act 1991 (SA) s 4; Freedom of Information Act 1982 (Vic) s 5; Freedom of Information Act 1992 (WA) sch 2 cl 1: ‘document’ means ‘record’ which is then defined.

94 Freedom of Information Act 1982 (Cth) s 4; Freedom of Information Act 1989 (NSW) s 6; Freedom of Information Act 1992 (Qld) s 7; Freedom of Information Act 1982 (Vic) s 5; Freedom of Information Act 1992 (WA) sch 2 cl 4; Freedom of Information Act 1989 (ACT) s 4.

95 Agencies, ministers and officers are not taken to have authorised or approved copyright infringements by the recipients of documents under FOI legislation: Freedom of Information Act 1982 (Cth) s 91(2); Freedom of Information Act 1989 (ACT) s 77(2).

96 Norrie Ross, ‘Speed Cam Manual Taken Off Website’, Herald Sun (Melbourne), 18 October 2007, 28.

97 Freedom of Information Act 1982 (Cth) s 91; Freedom of Information Act 1989 (ACT) s 77.

98 See discussion of the issues for State government officials in Enid, Campbell and Ann, Monotti, ‘Immunities of Agents of Government from Liability for Infringement of Copyright’ (2002) 30 Federal Law Review 459Google Scholar, 469–71.

99 Freedom of Information Act 1992 (Qld) s 30(3); Freedom of Information Act 1982 (Vic) s 23(3); Freedom of Information Act 1992 (WA) s 27(2). See discussion by Campbell and Monotti on whether this provision derogates from the right of the Crown to sue for infringement of copyright and their conclusion that it should be construed as a licence: Campbell and Monotti, above n 98, 471.

100 Freedom of Information Act 1989 (NSW) s 27(3); Freedom of Information Act 1991 (SA) s 22(2).

101 Freedom of Information Act 1982 (Cth) s 20(3); see also Freedom of Information Act 1989 (ACT) s 19(3).

102 Freedom of Information Act 1982 (Cth) s 20(3); see also Freedom of Information Act 1989 (ACT) s 19(3).

103 Constitution s 109. Discussed in Campbell and Monotti, above n 98, 471.

104 See above, text accompanying n 83.

105 FOI Independent Review Panel, The Right to Information: Reviewing Queensland’s Freedom of Information Act (2008)Google Scholar.

106 Ibid 35.

107 Freedom of Information Act 1982 (Cth) s 41; Freedom of Information Act 1989 (NSW) sch 1 cl 6; Freedom of Information Act 1992 (Qld) s 44, 50A; Freedom of Information Act 1991 (SA) sch 1 cl 6; Freedom of Information Act 1991 (Tas) s 30; Freedom of Information Act 1982 (Vic) s 33; Freedom of Information Act 1992 (WA) sch 1 cl 3; Freedom of Information Act 1989 (ACT) s 41; Information Act (NT) s 56.

108 Freedom of Information Act 1982 (Cth) s 43; Freedom of Information Act 1989 (NSW) sch 1 cl 7; Freedom of Information Act 1992 (Qld) s 45; Freedom of Information Act 1991 (SA) sch 1 cl 7; Freedom of Information Act 1991 (Tas) s 31; Freedom of Information Act 1982 (Vic) s 34; Freedom of Information Act 1992 (WA) sch 1 cl 4; Freedom of Information Act 1989 (ACT) s 43; Information Act (NT) s 57.

109 Freedom of Information Act 1982 (Cth) s 45; Freedom of Information Act 1989 (NSW) sch 1 cl 13; Freedom of Information Act 1992 (Qld) s 46; Freedom of Information Act 1991 (SA) sch 1 cl 13; Freedom of Information Act 1991 (Tas) s 33; Freedom of Information Act 1982 (Vic) s 35; Freedom of Information Act 1992 (WA) sch 1 cl 8; Freedom of Information Act 1989 (ACT) s 45; Information Act (NT) s 55.

110 Copyright Law Review Committee, above n 19, 51.

111 Senator John Faulkner, ‘Freedom of Information Reform’ (Press Release, 22 July 2008).

112 Incorporated into the Copyright Act 1968 (Cth).

113 Reproduction in digital and two dimensional form and electronic communication.

114 See Freedom of Information Act 1982 (Cth) s 12(1).