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[C]opyright is antithetical to freedom of expression. It prevents all, save the owner of the copyright, from expressing information in the form of the literary work protected by the copyright.[11] …
[I]n most circumstances, the principle of freedom of expression will be sufficiently protected if there is a right to publish information and ideas set out in another's literary work, without copying the very words which that person has employed to convey the information or express the ideas [however]… circumstances can arise in which freedom of expression will only be fully effective if an individual is permitted to reproduce the very words spoken by another.[12]
Having said that, His Lordship went on to say that it would be only in very rare cases that freedom of expression would trump copyright and the public interest would justify copying of the form of expression used in a work.[13] In that case there were contradictory accounts of the sensitive negotiations between the political parties and the Court of Appeal suggested that the newspaper was justified in 'making limited quotation of Mr Ashdown's own words, in order to demonstrate that they had indeed obtained his own minute, so that they were in a position to give an authentic account of the meeting.'[14] But one or two short extracts would have been sufficient. The Court of Appeal held that the extent of the copying in Ashdown was too great and there was no justification for the reproduction.[15]
In Australia, without an express protection of free speech as there is in the United Kingdom,[16] there is even less prospect of a public interest defence justifying reproduction of an author's words in such cases.[17] In the case of the leaked defence and foreign affairs documents in Commonwealth v Fairfax & Sons Ltd[18] the would be publishers of the restrained book did publish another book with summaries of the information entitled State Secrets: A Detailed Assessment of the Book They Banned, Documents on Australian Defence and Foreign Policy 1968–1975.[19] What was denied to the public was full disclosure of the documents in their original form. The form of expression used by the author of documents may be a matter of legitimate public interest and give relevant meaning to a document, and the copyright owner can control that.
The Copyright Law Review Committee ('CLRC') reviewed Crown copyright in 2005.[20] Arguments were made in submissions to the CLRC for a public interest defence to facilitate open access to government information but the Committee determined that a defence of this kind had broader implications and was outside the scope of that inquiry.[21] The CLRC said that the issue was not confined to Crown copyright. Indeed, as Ashdown demonstrated, someone other than the Crown can own copyright in documents that disclose information about the activities of governments. In the recent case Copyright Agency Ltd v New South Wales[22] it was the surveyors who owned the copyright. The surveyors sought payment and did not attempt to prevent public access to their works, but the decisions in that case have wider implications for public access to government information.
The Copyright Agency Ltd v New South Wales[23] case concerned plans drafted by surveyors for landowners who wanted to register strata plans and subdivisions and to obtain government permission for their real estate developments. The surveyors are members of the collecting society Copyright Agency Limited ('CAL') that represents copyright owners by collecting licence fees for use of protected works and distributing that income to the Agency's members. CAL has special recognition to administer and collect income from the statutory licence that allows use of copyright works for the services of State and Commonwealth governments.[24] The case was brought to determine whether the New South Wales government was liable to pay licence fees to CAL for use of survey plans[25] deposited by its members as part of the real property registration process.
In the early stages of the surveyors' case[26] the New South Wales government responded to claims for payment for use of the survey plans with the argument that it owned copyright in the plans. The surveyors were independent creators who would ordinarily be the first owners of copyright in their work.[27] As the relevant collecting society, CAL applied to the Copyright Tribunal for orders fixing payment under the statutory licence[28] for use of the survey plans by the New South Wales government. The Copyright Tribunal referred a series of questions of law for determination by the Full Federal Court. These questions included whether the New South Wales government owned copyright in the plans and, if not, whether the State was entitled to a licence to use the works other than under the statutory licence.[29]
The representative survey plans chosen for this test case were plans for subdivisions of land in New South Wales. A register of lands is maintained for the purposes of the Real Property Act 1900 (NSW). A subdivision plan must be registered, it must be prepared in a prescribed manner, be certified by a registered surveyor, and include a subdivision certificate issued by the relevant local council. The web of legislation that governs this process determines the form and content of the plans created by the surveyors. The subdivision plans must be disclosed to and approved by the landowner and the local council. The plans are then lodged with Lands and Property Information ('LPI' — formerly known as the Lands Titles Office), proceed through a registration process and then form part of a public register of land. Government agencies and members of the public are entitled to obtain either paper or electronic copies of plans from the register and information from the plans is incorporated into a database.[30]
In the surveyors' case there was use of the plans beyond the supply of copies from the public register. The LPI took bearing and distance information from the plans and included it in the Digital Cadastral Database ('DCDB'). The DCDB contains graphical data derived from a wide variety of sources including water boards, councils, and land commissions. The data was updated using information from survey plans and other sources. State and local government and commercial entities such as information brokers and members of the public have access to the DCDB under licence and the LPI sell copies of the whole or part of the DCDB to the public in a number of different formats and storage media.[31]
The data in the DCDB can be used to produce a geographical representation of an area, which can then be printed. Complex questions about objective similarity and indirect copying could have arisen from asking whether taking spatial data from the surveyors' plans reproduces copyright in the artistic work. Instead, the Full Federal Court resolved the issue by concentrating on the requirement in copyright law that a substantial part of work be used.[32] A great deal of information on the surveyors' plans was not entered into the database and so incorporation of the data into the DCDB was, the Full Federal Court held, not a reproduction of a substantial part of the plans.[33] The High Court refused leave to appeal on this point.[34] The copyright uses that were considered by the High Court were the copies made of the surveyors' plans for supply to the public and initial copies made to process the registration.
The legislative framework that determined how the surveyors' plans were created and the form they took was central to the question of copyright ownership. It was clear that the surveyors were the authors of the plans. Generally, authors are the first owners of their work.[35] There are exceptions notably the work of employees that is owned by their employers.[36] In a few limited circumstances commissioning clients may be the first owners of copyright in the work they commission[37] and copyright can be assigned in writing with the agreement of the first owner. In addition to these provisions copyright may vest in the Crown in certain circumstances.
The Commonwealth and States own copyright in works made by or under the direction or control of the Crown.[38] Works made 'by' the Crown are those made by a servant or agent. The concepts 'direction' and 'control' concern creators who are being directed by government to make the work. The New South Wales government argued that it had directed or controlled the making of the survey plans because they were brought into existence to satisfy statutory requirements and conformed to a format required for registration.[39] The government did determine the form of the plans through the legislative and administrative processes for registration, but the decision whether or not to create and submit a plan remained with the surveyors and their landowner clients.[40] Justice Emmett in the Full Federal Court[41] held that a work made under the direction or control of the Crown 'must involve the concept of the Crown bringing about the making of the work'.[42] The power to grant or refuse a government licence, or to require that a work conform to a particular form before approval is granted, is not sufficient control over the creation of a work to satisfy 'direction or control' for copyright ownership. The Crown must control whether or not the work will be made. Emmett J suggested that the phrase direction or control 'might not extend much, if at all, beyond commission, employment and analogous situations'.[43] Granting the Crown ownership of commissioned works without the need to specifically negotiate an assignment from the author is a privilege not enjoyed by commissioning clients in the general community, but this interpretation does place important constraints upon the Crown's ownership of works in other contexts. Importantly, the Crown will not own copyright in works created with the purpose of submitting it to government.
This interpretation is significant; a broader approach could have extended Crown copyright to a wide range of material supplied to government when government prescribed its form or content. Loss of copyright to the Crown in such circumstances would have had an obvious deleterious impact upon the authors, but it could also have had implications for public access to material submitted to government. In the case of the survey plans the register was open to the public. In other situations governments may administer processes for public submissions where disclosure to the public is not guaranteed. For instance, a government may be reluctant to publish a report from an inquiry that included public submissions if the final recommendations are politically sensitive or diverge from current policy. If copyright in the material submitted to government had vested in the Crown the authors of the submissions would need to negotiate a licence to publish their own material. A licence for government to publish material submitted to it with ownership retained by the authors gives greater scope for public access because either the authors or government, or both, may publish. The Full Federal Court's interpretation of the phrase 'direction or control' has confined its scope and limited the range of material owned by the Crown, thereby benefiting authors and arguably the wider public as well.
Under Australian copyright law, if a work is independently created, the author may still lose copyright in the work if the Crown is the first to publish it.[44] In its report on Crown copyright the CLRC discussed the broad ambit of this ownership provision.[45] State and federal government publishing is very extensive, and once authors give permission for their work to be published by a government agency, their copyright is likely to be lost. It is possible for authors to negotiate retention of their copyright[46] but the Crown is placed in a much stronger negotiating position.[47]
There has been some debate about whether Crown ownership by first publication extends to situations where a work is published by a government agency without permission from the author. If the first publication provision[48] is read subject to a definition of publication in the Act that excludes 'unauthorized' publications,[49] then the potential scope of Crown ownership is reduced. Ann Monotti has argued that 'first publication' by the Crown should be interpreted as only those publications authorised by the copyright owner.[50] Alternative views were expressed to the CLRC in its Crown copyright review, notably by one government department.[51] The CLRC pointed out that any interpretation that leads to involuntary transfers of copyright to the government raises constitutional issues about acquisition of property without the payment of just terms.[52]
If 'first publication' is interpreted as applying to only those works published by the Crown with the permission of the copyright owner, the question then becomes whether or not the copyright owner has authorised publication in a particular case. That is not always an easy question to answer when material is submitted to governments for purposes such as licence approvals and registrations. If the purpose of the copyright owner is to effect registration, and if the administrative procedures associated with registration include disclosure of the work in a public register, has the copyright owner authorised that use by submitting the work? In the surveyors' case the Full Federal Court decided that, by assenting to submission of the plans, the surveyors 'authorised the State to do everything that it was obliged to do in consequence of the registration of the Relevant Plan'.[53] This included distribution of copies to the public, and would have vested copyright in the New South Wales government if it were the first publication. This decision on the implied licence was reversed by the High Court on appeal.
The High Court held that the surveyors did not licence the uses for public purposes and reserved those uses, including distribution of copies to the public, to the statutory licence scheme with payment to the surveyors. The distribution of copies to the public under the statutory licence does not result in publication.[54] Although not an issue that was raised before the High Court, it follows from its finding on the implied licence that the State government does not publish the surveyors' plans.
The Full Federal Court had also found for the surveyors but that was done on the basis that distribution of copies of the plans to the public by the New South Wales government was not 'first' publication. That finding was not appealed to the High Court and is problematic.
In the Full Federal Court, Justice Emmett[55] decided that the survey plans considered in the test case had been published before they were registered and so the subsequent release of copies by the New South Wales government was not a 'first' publication.[56] To qualify as publication, a supply of copies must be to the public and must meet the reasonable requirements of the public.[57] This raises the question: what is the public? In the surveyors' case the distribution of copies before registration by the New South Wales government was limited. The surveyors supplied copies of their plans to the owners of the land who commissioned the surveys and Justice Emmett concluded that that was a publication.[58] With respect, limited supply of a work to clients is not a supply to the public as that concept is used in s 29 of the Copyright Act 1968 (Cth).[59] This is not about how many copies are distributed but whether they are available to the public. A client may be a corporation and multiple copies of a work may be distributed throughout the organisation and yet it will not be publicly available. Alternatively, a work may be published by an offer to supply copies to the public even though there is little or no demand for them. A work that few people want may be published if it is nevertheless readily available to the public upon demand.[60] Supply to a client keeps the work firmly in the private domain and unpublished.
In the surveyors' case, CAL argued for publication by this limited supply to clients to avoid the loss of their members' copyright by first publication by the New South Wales government. This was described by Counsel for CAL in the special leave argument before the High Court as CAL's 'fall back position' that had led to an unsatisfactory resolution of the problem in the Full Federal Court decision.[61] Looked at more generally, this finding of publication by such limited supply could have detrimental outcomes for copyright owners. For instance, the decision to release material to the public can have an impact upon the term of protection for most categories of protected material.[62] Under normal circumstances a copyright owner would not want a limited release, such as sending a manuscript to a commissioning client, to result in publication.
In the surveyors' case, Justice Emmett also held that the supply of the plans to local municipal councils to obtain subdivision certificates was also a publication that preceded publication by the New South Wales government. Whether or not this supply was to the public is a little unclear from the judgment. Supply of copies to a government decision-maker for a certificate will not be a publication for the same reason that supply to client is not. If a decision-maker holds a copy it is not available to the public at large. If that approval process included the supply, or making available, of copies by the council to the public it could constitute publication. While submission to a council decision-maker is not publication by the copyright owner, supply of copies to the public by the council might be, but that raises again the question of whether it has been authorised by the copyright owner.[63] Publication by the council would have, as Justice Emmett concluded, preceded registration and publication by the State.[64] If there were publication by the council, this could take the argument full circle if the council is itself part of the Crown as an authority of the State, which is a view that has been taken by some commentators.[65] Left as it has been with the decision of the Full Court in the surveyors' case this issue warrants further consideration.[66] The licensing issue went on to the High Court, but the Full Federal Court's decision on Crown ownership was not appealed.
The surveyors owned copyright in their plans. CAL, acting for the surveyors, accepted that the State was allowed to copy and make available to the public the registered survey plans. The surveyors did not seek to restrict public access; what they sought was remuneration for those uses. Commonwealth and State government uses of copyright material are authorised in Australia under a statutory licence.[67] If the uses are for the services of the Commonwealth or State[68] there is no need for the government to obtain permission from the copyright owners and the owners are unable to prevent the use. The government must contact the copyright owners,[69] inform them of the use and agree to terms.[70] That case-by-case negotiation need not be undertaken if arrangements are made with a recognised collecting society.[71] CAL is the collecting society that administers this statutory licence. It argued that the statutory licence was the only basis upon which use of the registered survey plans was allowed and so payment by the State government needed to be settled.
The Full Federal Court held that a licence arose from the submission process unrelated to the statutory licence because the surveyors 'must have known and intended'[72] that the plans would become registered plans. The Full Federal Court held that by assenting to submission of the plans the surveyors had authorised the State 'to do everything that, under the statutory and regulatory framework that governs registered plans, the State is obliged or authorised to do with, or in relation to, registered plans'.[73] This implied licence arose from submission of a copyright work to government and operated quite independently from the statutory licence. If no statutory licence had existed the surveyors would still have intended all the uses by the New South Wales government that followed from registration.[74] The Full Federal Court held there was no need for the State to pay for that use. This answer to the question originally posed in the case stated by the Copyright Tribunal[75] was reversed on appeal by the High Court.[76] The High Court accepted CAL's submission that the Copyright Act 1968 (Cth) sets out a comprehensive licence scheme for government use of copyright material owned by others and there was nothing to suggest that this could be circumvented by the State by making other arrangements.[77]
The High Court distinguished the government supply of the survey plans to the public from other cases where a licence had been implied. A 'licence will only be implied when there is a necessity to do so'[78] and there was no necessity in this case because a statutory licence was available. There was nothing in the conduct of the surveyors that could be interpreted as abandoning their exclusive rights. Other matters that the High Court thought militated against an implied licence were that the surveyors could not practise their profession without consenting to the registration of survey plans, and that payment to the surveyors under the statutory licence did not undermine their clients' use of the commissioned plans. Further, the surveyors' clients could not be expected to take the extended uses made by government into account when negotiating contracts for the drafting of survey plans. Significantly, the High Court also noted that the New South Wales government charges for the copies it issues to the public.[79]
But did that then mean that none of the uses of the survey plans by the New South Wales government from the moment of registration were impliedly licensed? The High Court distinguished between government uses of the survey plans in direct response to their lodgement and subsequent uses for public purposes. The surveyors did not impliedly license the latter uses of the plans by the State 'which flow from registration and which involve copying the plans for public purposes or communicating them to the public via a digital system'.[80] However, the making of a working copy of the plans to effect registration and issue a title were uses anticipated by the surveyors and their land owner clients and were directly connected with that process. The High Court decision makes it clear that these initial uses associated with registration and the issue of title were related to the copyright owners' and his or her clients' private interests and need not be remunerated under the statutory licence. CAL only sought remuneration for the latter public uses[81] but, significantly, CAL argued that the uses associated with the initial registration could be 'accommodated' in the statutory licence scheme. Setting zero payments could do this and so there was no need for an implied licence for any of the uses.[82] This approach resolves the matter when a collecting society is administering the scheme (as in the surveyors' case) but leaves no scope for an implied licence in a myriad of other situations when making copies is a necessary part of processing material submitted to government.
In earlier stages in the proceedings in the surveyors' case, there were arguments about whether the tax department had a right to photocopy a taxpayer's file when going about its ordinary administrative tasks. Counsel for CAL did not concede that even these types of copyright uses of works authored by the taxpayer were impliedly licensed and said 'one lives with infringements around the edges whether they are impliedly licensed or not'.[83] Without an implied licence all government uses must be covered by the statutory licence and every copy made of a work authored by someone outside of government would need to be processed according to s 183: the copyright owner must be advised of the use and terms agreed or administered by a collecting society. There would indeed be many infringements around the 'edges' with breaches of s 183. Every applicant for a licence or benefit from government, every taxpayer, every author of a submission to a public inquiry would be likely to have his or her copyright infringed. Accepting infringements in such cases is an unacceptable way of resolving the problem. It will still be necessary to imply a licence to use material in many situations when copyright owners have submitted material to government expecting it to be processed, and copies to be made, and when there is no prospect of this use being administered by a collecting society under the statutory licence. For instance, an author of a submission to a public inquiry that has announced that submissions will be published on a website should be taken to have licensed that use[84] just as an author of a letter to the editor of a newspaper is taken to have impliedly licensed its publication in the letters pages of the paper.
CAL's position was that the statutory licence was not limited in any way. There are two possible interpretations of how the High Court understood the initial unremunerated uses would proceed in the surveyors' case, but overall the stronger argument is probably that the statutory licence also covers those uses because it is comprehensive and may not be circumvented.[85] The High Court noted that CAL sought no payment for the initial uses associated with registration of the plans and issue of title and stated that such uses 'are not dissimilar to the uses under consideration in the implied licence cases.'[86] The court then went on to consider the public uses, not related to the private interest of an applicant, and for which 'a number of different considerations apply'.[87] At this point in the judgment there might have been some room left for an implied licence arising, of necessity, in relation to the initial 'private' uses associated with processing the registration. However, at the end of the judgment, the High Court concluded that when a statutory licence scheme exists that excepts the Crown from infringement, there is no necessity for an implied licence, particularly when there is scope for fixing remuneration for some uses at naught:
The [Copyright] Tribunal is experienced in determining what is fair as between a copyright owner and a user. It is possible, as ventured in the submissions by CAL, that some uses such as the making of a 'back-up' copy of the survey plans after registration, will not attract any remuneration.[88]
The High Court makes it clear that statutory licence for Crown use will not be read down to exclude uses of copyright works by governments pursuant to obligations under other legislation.[89]
One can foresee numerous practical problems arising from a complete denial of implied licences for the Crown because of the availability of the statutory licence. Collecting societies will not represent every taxpayer who has one personal file that may be copied by the tax department or every correspondent whose letter to a government agency may be scanned into a digital document management system. CAL will not be arranging for payments to be set at zero for all these uses that, arguably, the authors always intended. The authors certainly intend that their business should be conducted promptly and efficiently. For these kinds of uses the government could not reasonably be expected to contact the copyright owner, advise them of the use and negotiate terms.[90] The High Court in the surveyors' case emphasised the notion of 'necessity' in cases involving implied licences.[91] The existence of the statutory licence scheme for government use meant that there was no necessity in the surveyors' case. The High Court decision is an important victory for the surveyors and other creators of works submitted to government that have valuable secondary uses for which the creators ought to be paid. However, there is still a need for an implied licence to use a work in the way intended by the owner in other situations when copyright material is submitted to government if there is no further use that will impact upon the copyright owners' normal exploitation of the work. Duplicates are made and documents are scanned in day-to-day administration. In many such cases the owner will not be concerned about the copyright; their concern will be that their business with government is transacted efficiently.
Of course, that use intended by the owner will not necessarily encompass publication by supply of copies to the public. If the copyright owner's intention is to obtain a benefit from government, he or she cannot be taken to have agreed to subsequent public uses. The surveyors' case has established that copyright in works submitted to government is retained in private hands and a licence for public uses is unlikely to be implied. This is where private copyright ownership can conflict with public access to government information.
The High Court's decision in the surveyors' case is an important victory for copyright owners whose work is used by government, especially in cases where governments are involved in commercial exploitation of works by charging the public for access. The Full Federal Court's earlier finding of an implied licence arising from submission of copyright protected material to government to do everything the State is obliged or authorised to do with the work would have been inequitable in cases where the government was deriving financial gain from exploitation of these copyright works. However, that wide ranging implied licence now overruled by the High Court could have offered benefits for other uses of copyright works where the purpose is public access rather than commercial exploitation. Those uses, including copying for supply under FOI legislation, are potentially constrained by private ownership of copyright. With a wide-ranging implied licence now scuttled, law reform needs to be considered.
Over two decades from 1982 to 2002, FOI laws were introduced into all Australian jurisdictions.[92] FOI legislation grants a right of access to information, in the form of documents,[93] in the possession of government agencies and ministers. Documents of an agency are those held by the agency, or in its possession or control. This includes documents that have been produced by a government agency and documents it has received.[94] Copyright in a document sought under FOI may be held by the Crown or by another person who has submitted the material to the agency. Privately owned copyright is particularly problematic for State FOI legislation when faced with potential inconsistency with Commonwealth copyright law.
The FOI Acts establish procedures for access to unpublished documents held by government agencies, subject to a wide range of exemptions such as national security, business affairs and personal privacy. Copyright has the potential to place constraints upon initial access to, and subsequent public release of, documents when the FOI process would otherwise disclose them. Once access is granted to a document the information can be published to the world at large. This occurs, for instance, when the media obtain access to documents under FOI. The information may be published but not the copyright work recorded in the document. FOI applicants should be aware that being given access to a document does not give any permission to reproduce, publish or electronically communicate the copyright work.[95] In 2007 the Melbourne Herald Sun newspaper reported that a Victorian motorist, John King, obtained a copy of a roadside speed camera operator's manual under FOI and successfully used it to defend a speeding fine. The manual was then uploaded to a website. The Victorian government claimed copyright in the document and insisted that it be removed from the internet.[96]
Privately owned copyright can also place restrictions upon the initial supply of documents under FOI. Applicants usually seek copies, and making them involves a potentially infringing reproduction of the copyright work. The Commonwealth and Australian Capital Territory FOI Acts include provisions that protect agencies and officers from copyright infringement actions if they give access to documents under FOI.[97] The State FOI Acts do not grant protection from liability inconsistent with the Commonwealth Copyright Act[98] and copyright places restrictions upon the form of access that may be granted under State FOI regimes. An applicant may be refused copies and only be given a right to inspect documents because of copyright restrictions. In some States this restriction applies when a person other than the State owns the copyright.[99] Copyright owned by the Commonwealth or another State may still restrict access. In New South Wales and South Australia the restrictions on supply of copies refer to infringement of copyright in the document without excluding State owned copyright.[100] If these sections were to be read as including infringement of copyright owned by the State it would undermine the FOI systems in those States. There are other sections in the New South Wales and South Australian Acts dealing with the supply of copies, and so the legislatures could not have intended that that form of access could be prevented by copyright owned by the State. Like the other States, privately owned copyright may prevent access by the supply of copies.
The Commonwealth and Australian Capital Territory FOI Acts are not hampered by copyright in the same way as the State Acts. Access in the form of copies may not be refused because the Commonwealth or a State owns the copyright.[101] If the granting of access would involve an infringement of copyright owned by someone other than the Commonwealth or a State, access in that form may be refused but not if the subject matter of the document relates to affairs of a government agency or department.[102] So even if a private individual or entity owns copyright in a document, copies may be supplied if it contains information relating to government affairs. The State Acts do not include similar provisions. If State legislatures attempted to introduce an exception to copyright infringement it would be inconsistent with Commonwealth law and so invalid.[103] In the States privately owned copyright can be grounds for limiting the form of public access to information about government.
While access in the form of copies may be refused on occasions because of copyright concerns, in practice large volumes of documents are copied each year in response to FOI applications and amongst them are documents in which someone other than the Crown owns the copyright. There are numerous copyright infringements occurring on the 'edges'[104] in this area of government activity. There may be, as I have argued, still some necessity for implying a licence for some initial 'processing' uses by government, but after the High Court decision in the surveyors' case there seems to be no prospect that a licence to do as required under FOI legislation would be implied from the act of submitting a work to government. This is an area that requires reform.
In June 2008 an Independent Review Panel conducted a comprehensive review of the Queensland FOI Act.[105] The Panel made numerous recommendations, amongst them were proposals that involved a 'push' model for FOI with routine release of a wide range of material. This included a proposal for disclosure logs that provide online access to information previously released under FOI.[106] If these logs are to be comprehensive then the issue of privately owned copyright in some of the material will need to be addressed.
A range of exemptions from FOI disclosure protect private interests including: personal privacy or personal affairs;[107] business affairs and trade secrets;[108] and documents containing material obtained in confidence.[109] If a document is made available under FOI legislation there are important policy grounds supporting public access that should not be undermined by copyright. Copyright should not be used to restrict access when the FOI exemptions do not. In its report on Crown copyright the CLRC noted that the Freedom of Information Act 1982 (Cth) contains review mechanisms when governments refuse access under FOI but there are no such rights of review when access is refused on the grounds of copyright.[110]
The Commonwealth government is currently reviewing freedom of information law.[111] A broader exception to copyright infringement[112] should be considered that would allow copying[113] of documents that contain matter relating to the affairs of an agency or of a department of government and have been released under State or Commonwealth FOI. The exception to infringement should protect the government official supplying the copy and all subsequent users. This would ensure that copyright does not undermine the open government objectives of the FOI regimes. Existing exemptions in the FOI Acts that prevent disclosure of personal information and business affairs, combined with the requirement that the material concern the affairs of government, would prevent such an exception from being used to circumvent protection of privately owned, commercially valuable copyright that is held by government. It should also be noted that documents available for public access where that access is subject to a fee or other charge are not available under FOI[114] and so an exception of this kind would not undermine the remuneration that was defended in the surveyors' case derived from the statutory licence. It should be expressly stated that an act done under this exception does not constitute publication of the work or other subject matter for the purposes of copyright.
The High Court and Full Federal Court decisions in the surveyors' case are a victory for copyright owners. The Full Federal Court placed constraints upon the scope of the concept of 'direction or control'. The Crown must bring about the making of a work and copyright will not vest in the Crown when its only contribution is to prescribe the form of work submitted by owners to comply with legislative or administrative procedures. This decision has retained a significant amount of copyright protected material in private hands.
The Full Federal Court's decision on the second of the two Crown ownership provisions, concerning first publication by the government, is problematic. The Full Federal Court decided that the New South Wales government was not the first publisher when it supplied copies of the survey plans to the public because the plans had already been published. That publication was said to have occurred when the surveyors supplied their plans to their clients and local councils. Supply of a copy to a client or a council decision-maker would not satisfy the reasonable requirements of the public and so does not constitute publication for the purposes of the copyright. This decision, which benefited the copyright owners in this case, was described by their counsel as a 'fall back position'. If followed in other cases it would produce an unsatisfactory result for copyright owners and needs to be reconsidered.
The High Court accepted CAL's argument that the Copyright Act 1968 (Cth) sets out a comprehensive licensing scheme for government use of copyright material owned by others, and overruled the Full Federal Court's implied licence that allowed the New South Wales government to use the surveyors' plans for public purposes without payment. Requiring a portion of the money paid by the public for access to the plans to be passed on to the surveyors through the statutory licence is a fair outcome in this case, especially when the copyright owners acknowledged that no payment need be made for some of the early processing uses associated with registration. But if this decision requires all government uses of privately owned copyright works to be administered through the statutory licence, then a myriad of day-to-day uses will infringe because the use fails to comply with the licence provisions. It is still necessary to imply a licence to use some works in the way intended by their owners when they submit them to government and expect them to be processed in ways that include reproduction. Although protected by copyright, these are documents that record transactions with government and do not have a secondary commercial value as the plans did in the surveyors' case.
In most circumstances the public may freely discuss information about government without encountering problems with copyright, but sometimes it may be necessary to reproduce the very words employed by the author to convey the information in a relevant document, and it is at that point that copyright may impinge upon information access. When the primary importance of a document is that it is a record of government activity, then access to that document is important in a society that supports open government. The supply of information under FOI involves the supply of documents. Copyright may prevent the supply of copies under FOI legislation and, while a copyright protected document may be viewed, and the information it contains ascertained, a user may not reproduce the exact words used in the document. It is imperative that the potential conflict between copyright and information access be reviewed in any future reforms of FOI legislation. An exception to copyright infringement should be introduced for documents containing matter relating to government affairs that have been released under State or Commonwealth FOI.
[∗] Senior Lecturer, Flinders University Law School.
[1] [2008] HCA 35; (2008) 233 CLR 279 ('the surveyors' case').
[2] Copyright Agency Ltd v New South Wales [2007] FCAFC 80; (2007) 159 FCR 213.
[3] Ann Monotti, 'Nature and Basis of Crown Copyright in Official Publications' [1992] 14(9) European Intellectual Property Review 305, 306. See also: Olivia Mitchell, 'Crown Copyright in Legislation' (1991) 21 Victoria University of Wellington Law Review 351, 357.
[4] Copyright Act 1968 (Cth) s 8A.
[5] Copyright Act 1968 (Cth) ss 176–178.
[6] [1980] HCA 44; (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) [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] AdelLawRw 2; (2002) 23 Adelaide Law Review 29; Jonathan Griffiths and Uma Suthersanen (eds), Copyright and Free Speech; Comparative and International Analyses (2005); Paul Torremans (ed), Copyright and Human Rights: Freedom of Expression – Intellectual Property – Privacy (2004). 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 328.
[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] HCA 44; (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] HCA 44; (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), discussed in: Copyright Law Review Committee, Parliament of Australia, Crown Copyright (2005) 40.
[20] Copyright Law Review Committee, above n 19.
[21] Ibid 112.
[22] [2007] FCAFC 80; (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] HCA 14; (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] FCAFC 80; (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] FCAFC 80; (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] FCAFC 80; (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] FCAFC 80; (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] FCAFC 80; (2007) 159 FCR 213, 240.
[40] Ibid 241.
[41] With the other judges agreeing.
[42] Copyright Agency Ltd v New South Wales [2007] FCAFC 80; (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] FCAFC 80; (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] FCAFC 80; (2007) 159 FCR 213, 242.
[57] Copyright Act 1968 (Cth) s 29(1), (4).
[58] Copyright Agency Ltd v New South Wales [2007] FCAFC 80; (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, 164.
[63] See above, text accompanying n 50.
[64] Copyright Agency Ltd v New South Wales [2007] FCAFC 80; (2007) 159 FCR 213, 242.
[65] See: Jill McKeough, Andrew Stewart, and Philip Griffith, Intellectual Property in Australia (3rd ed, 2004) 197. 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] FCAFC 80; (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] HCA 35; (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] HCA 35; (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] HCA 35; (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 459, 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).
[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).
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