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Immunities of Agents of Government from Liability for Infringement of Copyright

Published online by Cambridge University Press:  24 January 2025

Enid Campbell  and
Ann Monotti
Enid Campbell
Affiliation:
Monash University
Ann Monotti
Affiliation:
Monash University
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Extract

Australia's Copyright Act 1968 (Cth) (‘the Act’) makes several exceptions to the exclusive rights of copyright owners. The effect of these exceptions is to confer an immunity from legal liability for acts which would otherwise constitute an infringement of copyright. Some of the statutory exceptions relate specifically to the use of copyright material by agents of government. Other exceptions are of more general application, though they may be relied upon by agents of government in circumstances not covered by the more specific exceptions.

This article examines not merely the statutory exceptions which relate to and bear upon the acts of agents and organs of government. It examines also the protections against liability for infringement of copyright which are afforded by the laws of parliamentary privilege, legislation concerning printing and publication of parliamentary papers, and freedom of information legislation. Some constitutional issues are also considered.

Type
Research Article
Information
Federal Law Review , Volume 30 , Issue 3 , September 2002 , pp. 459 - 473
Copyright
Copyright © 2002 The Australian National University

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Footnotes

We thank Moira Paterson for her valuable comments on an earlier version of this article.

References

1 There is some debate as to whether this section applies to computer programs. For an interesting analysis of these provisions see Michelle Taylor-Sands and Kathryn Graham, 'Crown Use of Copyright Material and Computer Programs' (2001) 75 Australian Law Journal 566.

2 Copyright Act 1968 (Cth) ss 10(1), 10(3)(n);ACT Self Government (Consequential Provisions) Regulations (Cth) reg 2, Statutory Rules 1989 No 392.

3 Such other bodies may be styled committees, commissions or boards.

4 Use for the services of the Crown has been held to cover use for the services of the New South Wales Police Service: Re Seven Dimensions Pty Ltd (1996) 35 IPR 1.

5 The High Court's decision in Bropho v Western Australia (1990) 171 CLR 1 narrowed the application of this presumption but there remains some uncertainty about when the presumption will apply: see Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, Report No 92 (2001), chs 26 and 27.

6 Re Australasian Performing Right Association Ltd; Re Australian Broadcasting Commission (1982) AIPC 90–020.

7 Copyright Act 1968 (Cth) s 183(1).

8 Copyright Act 1968 (Cth) s 183(3).

9 Copyright Act 1968 (Cth) s 183(6).

10 Copyright Act 1968 (Cth) s 183(4).

11 Copyright Act 1968 (Cth) s 183(5).

12 The collecting society provisions in the Copyright Act 1968 (Cth) ss 183A–E apply in relation to a 'government copy' which is defined in s 182B to mean a 'reproduction in a material form of copyright material made under subsection 183(1).' Hence, the provisions do not apply to the right to communicate.

13 As of 1 October 2002, CAL had not entered into any agreement with Government in respect of digital copying.

14 See Copyright Act 1968 (Cth) s 10(1), 'communicate means make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter.'

15 Statute Law (Miscellaneous Provisions) Act (No 2) 1984 (Cth) s 3, sch 1.

16 Explanatory Memorandum, Statute Law (Miscellaneous Provisions) Bill (No 2) 1984 (Cth).

17 Commonwealth, Parliamentary Debates, House of Representatives, 13 September 1984, 1295 (Mr Duffy, Minister for Communications).

18 See Copyright Act 1968 (Cth) s 50(9).

19 For detailed treatment of these provisions see Staniforth Ricketson, The Law of Intellectual Property: Copyright, Designs and Confidential Information (2nd ed, 1999) [11.240–11.290]; James Lahore,Copyright and Designs, (3rd revised ed, 1996) [44,090]. See also Gareth Griffith, 'Copyright, Privilege and Members of Parliament' (2001) 19 Copyright Reporter 4.

20 Copyright Act 1968 (Cth) s 12.

21 See Copyright Act 1968 (Cth) ss 50(1)(aa), 50(7A)(d), 50(7B)(d).

22 The Copyright Law Review Committee (CLRC) recommended that ss 48A and 104A be amalgamated and apply to permit members of any parliament to make use of all parliamentary libraries: Copyright Law Review Committee,Simplification of the Copyright Act 1968. Part 1, Exceptions to the Exclusive Rights of Copyright Owners (1998) [7.168].

23 Parliamentary libraries may provide MPs and their agents with facilities for photocopying works held in their collections (or borrowed by them); but use of such facilities by MPs and their agents will not attract the protections accorded by the Act to parliamentary libraries.

24 Copyright Act 1968 (Cth) ss 40 and 103C (study and research); ss 41 and 103A (criticism or review); ss 42 and 103B (reporting of news); s 43(2) (professional advice by legal practitioners and patent and trade marks attorneys).

25 Copyright Act 1968 (Cth) ss 40 and 103C, read in conjunction with ss 10(2) and 10(2A). See also De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99 (Beaumont J).

26 See Enid Campbell and Hoong Phun Lee, The Australian Judiciary (2001) ch 8; Susan Kneebone, Tort Liability of Public Authorities (1998) 259 83.

27 Copyright Act 1968 (Cth) pt III, div 5.

28 Bill of Rights 1689, 1 Wm & M Sess 2, c 2.

29 Commonwealth Constitution, s 49;Parliamentary Privileges Act 1987 (Cth) s 16(1);Imperial Acts Application Act 1969 (NSW) s 6;Imperial Acts Application Act 1984 (Qld) s 5;Constitution Act 1934 (SA) s 38;Constitution Act 1975 (Vic) s 19;Imperial Acts Application Act 1980 (Vic) pt II, div 3;Parliamentary Privileges Act 1891 (WA) s 1;Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 6(1);Australian Capital Territory (Self Government) Act 1988 (Cth) s 24;R v Turnbull [1958] Tas SR 80, 83-4; Article 9 is reproduced substantially in the Parliament of Queensland Act 2001 (Qld) s 8.

30 Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 6 (2);Parliament of Queensland Act 2001 (Qld) s 9;Australian Capital Territory (Self Government) Act 1988 (Cth) s 24.

31 (1997) 142 FLR 1.

32 Copyright Act 1968 (Cth) ss 48A, 50.

33 (1840) 11 Ad & El 253; 113 ER 411.

34 Parliamentary Papers Act 1908 (Cth);Parliamentary Privileges Act 1987 (Cth) s 16(2)(d);Defamation Act 1974 (NSW) s 17;Parliamentary Papers (Supplementary Provisions) Act 1975 (NSW);Parliament of Queensland Act 2001 (Qld), ch 3, pt 3;Wrongs Act 1936 (SA) s 12(1);Defamation Act 1957 (Tas) s 10 (3);Constitution Act 1975 (Vic) s 73;Parliamentary Papers Act 1891 (WA);Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 11.

35 Section 109 provides that '[w]hen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency be invalid'.

36 Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466;Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151.

37 For example, a Government Printer.

38 Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 66, 75;Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, 216, 226, 231, 247, 260;Commonwealth v Tasmania (1983) 158 CLR 1, 139;Victoria v Commonwealth (1996) 187 CLR 416.

39 The freedom was first implied by the High Court in 1992. See Nationwide News v Wills (1992) 177 CLR 1;Australian Capital Television v Commonwealth (1992) 177 CLR 106. The implication was further considered in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

40 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

41 Freedom of Information Act 1982 (Cth);Freedom of Information Act 1989 (NSW);Freedom of Information Act 1992 (Qld);Freedom of Information Act 1991 (SA);Freedom of Information Act 1991 (Tas);Freedom of Information Act 1982 (Vic);Freedom of Information Act 1992 (WA).

42 Protection is given against liability for defamation and breach of confidence.

43 Section 8A(1) of the Copyright Act 1968 (Cth) provides that, subject to s 8A(2), the Act 'does not affect any prerogative right or privilege of the Crown'.

44 (1994) 181 CLR 134.

45 Ibid 160–1.

46 Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297. But in this case the accrued cause of action arose under the general law rather than under a statute.

47 A commercial publishing house could, for example, take the view that it should not undertake the publication of a manuscript on the ground that the manuscript is one which deals with matters which are mainly of interest to those who perform services for the Crown. Section 183 of the Copyright Act 1968 (Cth) would operate to give those performing such services a licence to reproduce the copyright material, albeit under conditions.