Public Access to Copyright Works Submitted to Government: Copyright Agency LTD V New South Wales and the Implications for Information Access
| Author | Judith Bannister |
| Published date | 01 September 2008 |
| Date | 01 September 2008 |
| DOI | http://doi.org/10.22145/flr.36.3.5 |
| Subject Matter | Article |
GOVERNMENT:
COPYRIGHT AGENCY LTD V NEW SOUTH WALES AND THE
IMPLICATIONS FOR INFORMATION ACCESS
Judith Bannister∗
I
INTRODUCTION
Governments create and commission copyright protected material as part of their core
administrative functions and they sometimes compete with the private sector as
developers of commercially valuable assets. Governments also use under licence
copyright protected material owned and created by others. A wide range of copyright
material is also submitted to State and federal governments when individuals and
corporations comply with legal obligations or conduct business with government
agencies. That material submitted to governments, and the information it contains, can
have value that extends beyond the initial transaction. Governments can add value by
compiling and processing the information and then charge the public for access.
Material submitted to government is also an important source of information about
how governments function. When the principles of open government and
transparency are discussed, the primary focus is usually upon access to information
recorded in documents created within government agencies. However, it is often
necessary to extend access to documents received by agencies. Copyright in that
material will be privately owned and that can conflict with public access.
Copyright law grants owners a series of exclusive rights to control access to their
literary, artistic and other protected material including the right to authorise
reproduction, publication, and electronic communications to the public. Licensing
those uses can be lucrative for owners. In the recent High Court case of Copyright
Agency Ltd v New South Wales1 surveyors who drafted survey plans that were lodged
with the New South Wales Department of Lands successfully argued that they ought
to be paid for public uses of their plans by the State government when that use
extended beyond the initial lodgement and registration. The High Court reversed a
decision of the Full Federal Court2 that no payment need be made because the
surveyors had impliedly licensed all uses by the New South Wales government when
they allowed the plans to be lodged. The High Court decision that the surveyors were
entitled to payment for use of their plans for public purposes was an important victory
_____________________________________________________________________________________
∗
Senior Lecturer, Flinders University Law School.
1
(2008) 233 CLR 279 ('the surveyors' case').
2
Copyright Agency Ltd v New South Wales (2007) 159 FCR 213.
382
Federal Law Review Volume
36
____________________________________________________________________________________
for their collecting society (Copyright Agency Limited) and copyright owners
generally, but it raises broader questions about the extent to which copyright may
restrict public access to government information. In the surveyors' case the State public
register of lands ensured public access and the High Court held the statutory licence
for government use entitled copyright owners to equitable remuneration for that use.
That licence is not always a practicable solution for occasional requests for public
access to government documents.
In this paper I will review the Full Federal Court and High Court decisions, explain
their relevance to copyright owners who submit works to government, and then
consider the implications of the High Court decision for information access and
specifically for freedom of information ('FOI') legislation. Under FOI, access to
information is usually granted in the form of copied documents. I will argue that a
statutory exception to copyright infringement is necessary to facilitate open access to
government information.
II
COPYRIGHT AND ACCESS TO GOVERNMENT INFORMATION
There has been a long tradition in Anglo-Australian law of the Crown asserting special
privileges in relation to copyright. The Crown prerogative in the nature of copyright
has been traced to early printing patents and the licensing of printing3 and is
preserved under the current Australian Act.4 The Commonwealth and States are also
granted special statutory rights that are greater than those of employers and
commissioning clients in the wider community.5 Governments may act like any other
copyright owner and exercise copyright to protect valuable commercial assets. For
instance, a government department may commercialise computer software that has
been developed in-house. However, there is also the potential for owners to use
copyright to suppress information by controlling reproduction, publication and
electronic communication of works and that takes on a particular dimension when
governments are involved and own the copyright.
In the case Commonwealth v Fairfax & Sons Ltd6 the Commonwealth government
prevented publication of extracts of leaked documents in a book entitled Documents on
Australian Defence and Foreign Policy 1968–1975 and newspaper serialisation of the
book. As the title of the book suggests, it contained Commonwealth foreign affairs and
defence documents including memoranda, assessments, briefings and cables on
matters such as the 'East Timor crisis'. Justice Mason in the High Court refused to
restrain a breach of confidence. In that case, the public interest in having a well
informed community and open discussion of public affairs outweighed the
government's interest in protecting confidentiality. Nevertheless, an injunction
restraining publication was granted. The Commonwealth succeeded in suppressing
publication by relying upon its copyright in the documents. The injunction was
granted despite the fact that the Court had accepted the public interest in disclosure of
the information. His Honour held that: '[t]he plaintiff's concern to stop publication of
_____________________________________________________________________________________
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) 147 CLR 39.
2008
Public Access to Copyright Works Submitted to Government 383
____________________________________________________________________________________
the information in the documents is not a reason for refusing it the protection to which
its copyright entitles it.'7
In theory copyright protects creative expression and not the underlying ideas or
information,8 but in practice there is a potential conflict between the property rights
exercised by copyright owners and freedom of expression and information access.9
This issue arose in a United Kingdom case concerning publication by the Sunday
Telegraph newspaper of a minute written by politician Paddy Ashdown. The minute
recorded confidential negotiations between the governing Labour party and the
Liberal Democrats party.10 Lord Phillips in the Court of Appeal said in that case:
[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
_____________________________________________________________________________________
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) 23 Adelaide Law Review 29;...
To continue reading
Request your trial