Your speaker: Isabel Parsons Managing Principal Solicitor Commercial & Property Branch Crown Copyright State ownership and use of copyright

Scope of this seminar Crown copyright – special rights of the State as owner statutory rights of the State to use copyright – protection from infringement paying for State use – role of collecting societies and collecting society agreements

What is copyright? right protecting original works and other subject matter, Copyright Act 1968 (Cth) works – literary, dramatic, musical and artistic other subject matter– published editions, film, video and sound recordings, radio and TV broadcasts no registration or formalities, but copyright notice may be used

Exclusive rights of the copyright owner extent and duration depends upon the work or subject matter works – reproduce, publish, perform in public, communicate to public, make adaptation other subject matter – copy, cause to be seen or heard in public, communicate to the public assignments, licences

Crown as owner of copyright Crown prerogative General ownership provisions of the Copyright Act Crown Copyright provisions - ss 176, 177 and 178

Crown prerogative s 8A Copyright Act preserves prerogative right and privileges of Crown historic duty of the Crown to superintend publication – AG (NSW) v Butterworth & Co (Australia) (1937) unlimited duration statutory materials and judgments (some debate about scope)

General ownership provisions of Copyright Act principal rule is that author or maker is the owner subject to Copyright Act and agreement major exception – works created by employees - s 35(6) ordinarily contractors continue to own copyright, subject to implied licence

General ownership provisions and the Crown State also has benefit of s 35(6) works created by public servants significant gaps – judges, holders of statutory office, volunteers Crown copyright provisions can put the State in a special position re contractors and commissioned works

Crown Copyright provisions Part VI Division 1 Crown copyright materials – include Hansard, bills, legislation, judgments, unpublished and published reports, internal documents Crown copyright provisions determine ownership in situations including: –works produced by or on behalf of government by employees and others –works commissioned or supplied by contractors where no agreement concerning copyright

Crown Copyright provisions ss 176 and 177 – State will own copyright in works made or first published s 178 – State will be owner of copyright in sound recording or film made s 179 – varied by agreement with author of work or maker of sound recording or film duration 50 years from publication or (for most artistic works) when made by, or under the direction or control of the State

Who is the State? Ministers, Departments, statutory corporations or other bodies which are ‘the Crown’ difficulties of identifying Crown bodies: constituent legislation, common law tests does not include other government bodies or local government Crown copyright vests in the State, not Crown bodies

What is ‘by, or under the direction or control’? Copyright Agency Ltd v State of NSW (2007 FC FCA) –by: servant or agent brings work into existence –direction or control – Crown determines whether work will be made general direction inadequate: BBC v Wireless League Publishing (1926) contracts for production of works should deal with copyright ownership and use

First publication by the State can first publication by State secure copyright for the Crown? s 176 subject to s 29(6) re unauthorised publication CAL v State of NSW: publication without licence cannot be first publication, acts under s 183 are not publication caution – Crown needs at least an implied licence to publish

Management of government copyright Attorney-General has overall responsibility for Crown Copyright, exercised subject to 1991 Guidelines (under review) Department of Premier and Cabinet is responsible for regulation and administration of collecting society agreements no WoVG policy governing the management of government copyright DPC appointed Copyright Manager in 2008 to address WoVG issues including completion of Victorian collecting society agreements and development of WoVG IP Principles and Policy future policy development needs to include Victorian State Copyright Management Policy

Requirements for licensing under 1991 Crown Copyright Guidelines applies for ‘assistance of officers of Departments and Crown bodies’ fees to be charged authorisation from Attorney-General, Government Printer or Minister authorised by Attorney-General statements to be included in licensed material detailed recommendations for retailing electronic government information

Limitations of 1991 Crown Copyright Guidelines applies to any work (logo, photograph, multi million $ software) process for authorisation is inflexible no reference to exceptions under Act (eg fair dealing) little practical guidance lack of publicity failure to deal with intra-government use

Likely future directions for Crown Copyright Copyright Law Review Committee Report on Crown Copyright – abolition of key Crown rights and improved administration no formal response from Commonwealth or State major policy issues with recommendations

Crown as user of copyright agreements directly with copyright owners: licence agreements, licence provisions in other contracts implied licences exceptions or defences to infringement statutory government licences

Use of copyright material for the Crown Part VII Division 2 s 183 statutory copyright licence for government s 183A special arrangements for copying for the services of government

Statutory licence – s 183 not an infringement of copyright by State or a person authorised in writing to do any copyright act for the services of the State notification of owner and payment required

Implied licences and s 183 if State has an implied licence, does s 183 apply? CAL v State of NSW PC FCA – implied licence in surveyors plans appeal before High Court today Licence to do everything that under the statutory and regulatory framework that governs registered plans, the State is obliged to do with or in relation to, registered plans

Special arrangements for copying for government – s 183A does not include computer programs copying in any form - hard copy, digital no need to notify or pay owner pay equitable remuneration worked out using method as agreed with declared collecting society or determined by Copyright Tribunal pay collecting society

Declared collecting societies for government copies declaration of collecting societies for s 183A Copyright Agency Limited (CAL) –reproduction of works and published editions (other than those included in sound recordings, films, television or radio broadcasts) Screenrights –reproduction of television and radio broadcasts

Victorian agreements with collecting societies under s 183A CAL retrospective agreement CAL proposed prospective agreement (to include digital copying) Screenrights proposed agreement (retrospective and prospective)

CAL retrospective agreement 2000 to 2006 covers of photocopying of works by departments and Crown bodies listed separate invoices payment based on per page rate x average number of pages copied x FTEs average number of pages based on Surveys Victoria participated directly in Surveys 1 (1991) and 2 (1998), and Survey 4 (2006)

CAL proposed prospective agreement under negotiation with all States will cover hardcopy and digital reproduction by departments and Crown bodies listed detailed discussions are underway for survey design rates not yet agreed communication of copies to public not covered

Screenrights proposed agreement no States have entered into an agreement with Screenrights Screenrights seeking remuneration for retrospective and prospective copying Victorian departments and agencies have been participating in surveys to ascertain volumes no rates agreed

Compliance and Victorian s 183 agreements no need to notify or pay owners gaps –communication of works and published editions (CAL) –public performance of live and recorded music (APRA) voluntary agreements with collecting societies offer protection

Proposed Victoria APRA Agreement public performance of music in department and agency workplaces retrospective and prospective agreement under ss 183(4) and 183(5) will cover departments and agencies listed excludes certain performance rights, particular works and specified events individual site/department or agency licences may need to be continued whole of government rate being negotiated

CAL’s new GovCopy Licence for non-Crown bodies and local government allows hardcopy and digital reproduction, faxing, supply of hardcopies and limited (internal) communication limit on amount to be copied or communicated relates to works CAL is authorised to license under agreement: indemnity from CAL remuneration based on discounted s 183A agreement rates

Other agreements with copyright owners other agreements between department and agencies and collecting societies agreements with agents – eg service providers licensed by copyright owners (downstream press clipping licences provided by CAL) agreements directly with owners of copyright

More Information VGSO including our website CLRC Report on Crown Copyright Australian Copyright Council information sheets and training sessions collecting society websites