The decisions of the High Court and Full Federal Court in the case of Copyright Agency Limited v State of NSW confirm that it is not always safe to rely on the special copyright rules that apply to the Crown.

Special copyright rules that apply to the Crown

The Copyright Act 1968 (Cth) includes two special copyright rules that apply to the Crown (including the Commonwealth and the States). The provisions relate to:

  • Crown ownership of copyright.
  • Crown use of material in which copyright exists.

Sections 176 and 177 of the Copyright Act have the effect that, unless there is a written agreement to the contrary, the Crown is the owner of copyright in a work or subject matter other than work that is made or first published under the 'direction or control' of the Crown.

Section 183 of the Copyright Act has the effect that an act by the Crown that would ordinarily infringe copyright, is not taken to be an infringement if the act is performed 'for the services' of the Crown. However, there are still terms that apply to the doing of the act (including terms of remuneration). The terms that apply are the terms agreed between the Commonwealth or the State and the owner of the copyright or, in default of agreement, the terms fixed by the Copyright Tribunal.

Copyright Agency Limited v State of NSW

The case of Copyright Agency Limited v State of NSW considered the application of the special copyright rules that apply to the Crown.

The case relates to survey plans. The State of NSW requires survey plans to be lodged with Land and Property Information (LPI), a division of the Department of Lands, for the purpose of registering and issuing title in property. LPI uses the survey plans that it receives for various other purposes, including on-selling the plans to the public. Copyright Agency Limited is a collecting society that represents surveyors and other copyright producing professionals.

Federal Court

(Copyright Agency Limited v State of NSW [2007] FCAFC 80)

The State of NSW claimed that it owned the copyright in survey plans created by surveyors because the plans were made or first published under the 'direction or control' of the Crown. The Full Federal Court rejected that argument. It held that the plans were made for the surveyors' clients and were first published when they were provided by the surveyors to their clients. Surveyors always provide the plans to their clients first because the plans must be signed by the client before being lodged with LPI.

The Full Federal Court held that although the State of NSW did not own copyright in the survey plans, it had an implied licence to use the plans including to on-sell the plans to the public.

High Court

(Copyright Agency Limited v State of NSW [2008] HCA 35) Copyright Agency Limited appealed the Federal Court's decision that the State of NSW had an implied licence in respect of the survey plans.

The High Court upheld the appeal, finding that the State of NSW did not have an implied licence to on‑sell the plans to the public.

In the absence of an express or implied licence, section 183 of the Copyright Act applied. Accordingly, the State of NSW did not infringe the copyright in the survey plans by on-selling them to the public, but is required to remunerate the copyright owners for the use of the plans.

What it means for you

It is good practice not to rely on the special copyright rules that apply to the Crown without first asking the following questions:

  • Is the Crown ownership provision (sections 176 and 177) likely to apply?
    (The decisions in Copyright Agency Limited v State of NSW indicate that it will not be possible in all circumstances to rely on the Crown ownership provision).
  • Can a better outcome be achieved for the Crown by negotiating an agreement with the copyright owner before using the copyright material, rather than relying on section 183?
    (Remembering that the Crown use provision (section 183) requires the Crown to remunerate the copyright owner as agreed between the Crown and the owner of the copyright or, in default of agreement, as fixed by the Copyright Tribunal).

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