Yes, for King & Country too: The Full Federal Court confirms broad interpretation of Crown copyright exemption

Last May, we wrote about the test case, Australian News Channel Pty Ltd v Isentia Pty Ltd [2024] FCA 363, in which the Honourable Justice Burley made findings regarding the scope of the Crown copyright exception in section 183 of the Copyright Act 1968 (Cth). Section 183 permits the use of copyright material by federal, state and territory governments for ‘the services of the Commonwealth or a State’, subject to an obligation to pay reasonable compensation. 

Justice Burley had found that these exceptions covered the use of copyright works not just for the purpose of government providing services to its citizens, but also for the benefit of governments and their employees in making decisions relating to the performance of, and the functions of, the government.

The Full Federal Court has now upheld Justice Burley’s decision and confirmed that the exception encompasses a broad range of governmental activities, including back-office tasks and policy-making, rather than being limited to direct public-facing services.

How did this issue arise?

Australian News Channel Pty Ltd (ANC) is the owner and operator of Sky News Australia. It holds the copyright for all of its broadcast and online news content. 

Isentia offers media monitoring services to various clients, which involve searching across news and other media for items of interest to their clients, identifying them to their clients, and often and supplying those items to their clients. This process requires the wholesale copying of ANC’s published broadcast and online content, and Isentia would usually need a license from ANC to use such content. However, some of Isentia’s clients are government departments and statutory authorities, and some of them have provided Isentia with authorities expressed to have been made pursuant to subsection 183(1) of the Act.

Subsection 183(1) states:

‘The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the Commonwealth or a State, or by a person authorised in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.’ (Emphasis added.)

Subsection 183(3) states that authority can be provided by a Commonwealth or a State before or after the acts in respect of which the authority is given have been done’.

As discussed in our previous Insight, the words ‘for the services of the Commonwealth or the State’ in subsection 183(1) are not defined in the Act.

Isentia maintained that its provision of media monitoring services to those government clients who had provided it with such an authority did not infringe ANC’s copyright. ANC disagreed and took their case to the Federal Court.

What happened at first instance?

ANC argued that in order for the section 183 Crown copyright exception to apply, there must be a ‘direct’ connection between the act comprised in the copyright and the provision of a governmental service to citizens, and specifically, the kind of public services provided by a governmental body to its citizenry, namely, ‘the providing of, or a provider of, a public need, such as communications, transport etc’ (we referred to this previously as the outward government services argument).

ANC also argued that by referring to ‘a’ (singular) copyrighted work or other subject matter, section 183 requires that each specific copyright work and each specific act comprised in that copyright work must be examined to determine whether it is for the services of the government.

Isentia, however, argued that acts done by a person authorised by a governmental body for the benefit of the government are also within the protection afforded by section 183 of the Copyright Act submitting that:

‘… the monitoring of media content is central to the operation of modern government. In particular, on a daily basis, government uses copyright material comprised in broadcast and print media in performing core functions of developing, implementing and reviewing policy and briefing Ministers and senior public servants on issues that government needs to address.’

In our earlier Insight, we referred to this as the outward and inward government services argument.

Justice Burley favoured Isentia’s broader interpretation and their outward and inward government services argument, concluding that section 183(1) does not necessitate a direct connection between the copyrighted acts and services rendered to citizens.[1] He found that the media monitoring services provided by Isentia were indeed for the benefit of the government clients, aiding them in their functions and responsibilities, specifically stating that ‘acts done that assist a government department to perform its proper functions will be no less for the services of the government because they have an indirect, back office or preparatory role.’[2]

The judge noted that the acts of copying and monitoring were integral to the clients' operations, even if some content was not directly relevant to public services.

The Full Court dismissed ANC’s appeal on the following basis

The legislative history supports Isentia’s broader interpretation

Just as Justice Burley had done in his decision, the Full Court, made up of Justices Cheeseman, Jackman, and Owens extensively examined the legislative history surrounding section 183(1) and concluded that it was intended to provide a broad permission for government use of copyright material, subject to an obligation to pay reasonable compensation.[3] Notably the Full Court’s analysis included the following key points:

Collective acts can be considered rather than an ‘act-by-act’ analysis depending on the facts

ANC had argued that section 183(1) necessitated an ‘act-by-act’ analysis based on the use of the singular indefinite article ‘a’ in identifying the copyright material and the use of the phrase ‘any acts comprised in the copyright’.

The Full Court rejected this interpretation, asserting that these features did not carry the weight ANC had suggested. The court explained that it is standard to refer to ‘a work’ when discussing permissions for specific copyright material, and the term ‘any acts’ indicates that the permission applies broadly to all rights associated with the copyright.

The Full Court also found that the statutory framework of section 183(1) supports a broader interpretation, allowing for collective assessments of acts as well as strict, granular analyses, depending on the facts.

For example, it clarified that the reference in section 183(3) to ‘the acts in respect of which the authority is given’ does not require that any authority be framed at the level of individual acts. Instead, an authority can be expressed in a way that is appropriate to the scope of the permission sought. Therefore, as the Full Court states:[8]

‘If a narrow authority is granted, then it may well be that a narrow act-by-act analysis is required. But if a general authority is granted, then the analysis will often be capable of proceeding at a higher level.’

They also found that subsection 183(4), which requires notification to copyright owners when an act compromised in a copyright has been done under subsection 183(1), provides similar flexibility. They also found that subsection 183(5) and the sampling regime in section 183A to 183F, provided similar flexibility.

Redundant copying still qualifies as ‘for the services of the Commonwealth or State’

ANC had argued that certain acts of copying were redundant and not directly related to the services provided to government clients, which they claimed undermined the applicability of section 183(1). The Full Court, however, ruled that even if some copying was not directly utilised by government clients, it was still performed in the context of fulfilling the contracted service, thereby satisfying the statutory requirement.

Ultimately, the Full Court affirmed the primary judge's conclusion that Isentia's media monitoring services did not infringe the appellant's copyright, as the copying was conducted for the purposes of the Commonwealth or State. ANC’s appeal was dismissed with costs, reinforcing the broad scope of government use of copyright material under the Copyright Act.