Copyright: Crown use Just Became a Little Wider

The Copyright Act 1968 (Cth) s 183 grants the Commonwealth and the States a defence to copyright infringement where the acts comprised in the copyright are done for the services of the Commonwealth or State subject to certain conditions.

The appeal, Australian News Channel Pty Ltd v Isentia Pty Limited [2025] FCAFC 49, (Cheeseman, Jackman and Owens JJ, 10 April 2025), was from a decision of the primary judge (Australian News Channel Pty Ltd v Isentia Pty Limited [2024] FCA 363: “J”), which concerned the scope of the permission granted to the Commonwealth and States (as well as those authorised in writing by them) to use copyright material subject to the payment of compensation.

The appellant, a media company owning Sky News Australia, claimed that the respondent, a media monitoring service provider, infringed its copyright by copying its content for government clients. This service searches news and other media items of interest to its clients, identifies them to the client, and on occasion gives the client access to them: [3]. It was accepted that this process involved wholesale copying of the appellant’s content, however the respondent argued that it had clients which were government departments and statutory authorities, some of which had provided the respondent with authorities said to be pursuant to s 183(1) of the Act.

The primary legal issue was the interpretation of the phrase “for the services of the Commonwealth or State” in section 183(1) of the Act: [5]. The appellant submitted a narrow interpretation applied, in that there was a direct connection between the act and the provision of a governmental service to the public: [6]. The respondent submitted that a broader interpretation applied. In this regard the respondent supported the primary judge’s conclusion that an “otherwise infringing act is done for the services of the Commonwealth or State when the object or purpose of the act is to benefit the Government entity by assisting its employees or officers in the performance of their functions” (at J[76]; see also J[101]).

Similar (but not identical) provisions for the permitted use by the Crown and their authorized persons in writing, appear in the Patents Act 1990 (Cth) Chapter 17; the Designs Act 2003 (Cth) Chapter 8 and the Plant Breeder’s Rights Act 1994 (Cth) s 18.

The Full Court examined the legislative history of section 183(1) of the Act, noting its roots in provisions allowing government use of patented inventions. Patent law has long recognised the government’s power to compulsorily acquire rights to a patented product. In 1884, Hiram Maxim is credited with being the creator of the first automatic portable machine gun. An American-born British citizen and an electrical engineer, Maxim patented his design for the first automatic machine gun in 1884 in Britain. The Maxim gun became known as the Vickers gun, a result of Maxim’s partnership with the Vickers armaments company. The patented gun was adopted by the British government in 1891 and used extensively on the Western Front in World War 1.

Their Honours of the Full Court concluded, following the consideration of the legislative history, that “it was intended to confer a broad permission to use copyright material, for any purposes of the Crown, subject to an obligation to pay reasonable compensation”: [32].

Accordingly, the Full Court concluded that the respondent did not infringe the appellant’s copyright and dismissed the appeal with costs. There does not appear to be any apparent reason why such a more favourable view in favour of the Crown might not extend to patents, designs and thinking more futuristically, to Plant Breeder’s Rights.