24 November 2005
Key Points:
Although the abolition of Crown copyright provisions will not preclude the Government from owning copyright, they will represent a significant departure from the traditional safety net offered to Government departments.
The Copyright Law Review Committee ("CLRC") has issued recommendations that, if implemented, will cause Government departments to re-evaluate their approach to dealing with copyright ownership in contracts. Specifically, the CLRC has recommended that the special provisions for Crown copyright, in particular sections 176-179 of the Copyright Act 1968 (Cth), should be repealed as there is no continuing justification for such Crown copyright entitlements.
The current position in Australia
Under the general provisions of the Copyright Act, an author of a work and the maker of a sound recording or film will derive ownership of the copyright in the work or subject matter. The Crown copyright provisions alter this position for individuals who create a work or sound recording under the direction or control of the Crown. Sections 176 and 178 of the Copyright Act states that the Crown owns copyright in works (literary, dramatic, musical or artistic) and recordings or films "made by or under the direction or control" of the Commonwealth or a State. Further, section 177 allows the Crown to assume ownership of the copyright in a work "first published in Australia if first published by, or under the direction or control of" the Commonwealth or a State. These default provisions operate subject to section 179 which provides that, by agreement, the author or maker of the subject matter in which the copyright subsists may retain ownership.
The key issue that arises in relation to these sections is the meaning of the phrase "made by, or under the direction or control of, the Commonwealth or a State." This phrase contemplates Crown entitlement to copyright in works or subject matter generated by of a range of individuals who work for entities commissioned by the government to carry out government activities. That is, the term potentially targets not only government employees but also individuals who work for government commissions, statutory authorities, statutory corporations, government business entities, government-owned corporations and private corporations under contract to the government. Ultimately, the interpretation of the phrase is uncertain and unsettled since it is not defined in the Act, nor has it been subject to judicial consideration in the context of copyright law in Australia.
Crown copyright in the United Kingdom and the United States
Crown copyright protection in Australia was modelled on section 39 of the Copyright Act 1956 (UK), which has since been abolished. This section provided that the Crown would be entitled to the copyright in every "literary, dramatic, musical or artistic work made by or under the direction or control of her Majesty or a Government Department." Today, the extent of Crown copyright protection in the UK has been limited by the enactment of the Copyright, Designs and Patents Act 1988 (UK). In particular, section 163 states that the Crown will acquire the ownership of works generated "by an officer or servant of the Crown in the course of his duties." The legislation also abolished the Crown entitlement to copyright arising from first publication. The Whitford Committee Report of 1977 revealed that a prime argument advanced to the support the abolition of section 39 of the Act were the problems associated with the interpretation of the words "direction or control".
It is also interesting to note that the position in the US is that copyright protection is not available for any work of the United States Government. The definition of "work of the United States Government" is outlined in section 101 of the Copyright Act 1976 (US) to mean "a work prepared by an officer or an employee of the United States Government as part of that person's official duties."
The CLRC's recommendations
The CLRC concluded that there is no reason for the government to assume a privileged position compared to other owners of copyright and recommended the repeal of sections 176-179. The CLRC noted the provisions were enacted at a time when government activity was significantly less commercial and prolific and considered it inappropriate for the default position of the provisions to attribute ownership of copyright to the government, in absence of contractual provision to the contrary. Further, the CLRC observed that the term "direction or control" is a broad and uncertain term and stated that legislation should stipulate clearly whether copyright in works will remain with the creator or vest in the government.
Employer entitlement to employee copyright
The CLRC noted that if the Crown copyright provisions were to be repealed, the government would retain entitlements to claim copyright ownership under a number of other general provisions of the Copyright Act. In particular, the CLRC indicated that the most appropriate place to deal with the ownership of copyright was by contractual agreement. However, it also noted that governments could rely heavily on section 35(6), which allows employers to derive ownership of copyright in works made by employee authors as part of their employment under contracts of service. Consequently, the CLRC issued the further recommendation that this subsection should be amended insofar as it applies to the Crown so that the government as employer will assume ownership of copyright in works where it has been produced by an officer or servant of the Crown in the course of his or her duties. The adoption of such a recommendation would clearly align Australia's Crown copyright protection with the UK Crown copyright provisions.
Conclusion
Crown copyright protection legislation no longer seems relevant to regulate the ownership of copyright in view of modern government activity. As a result, the CLRC argues that traditional provisions that confer copyright ownership on the government must be repealed and recommends that any continuing protection be limited to circumstances where employees of the Crown produce copyright in works or other subject matter in the course of their duties.
Although the abolition of these provisions will not preclude the government from owning copyright, they will represent a significant departure from the traditional safety net offered to government departments. The Federal Government is currently considering the CLRC recommendations in relation to sections 176-179 and is yet to determine its position on the issue. If implemented, these changes will cause some level of concern for government departments and will generate a renewed focus on the IP provisions in government contracts. Consequently, until the Federal Government formulates its response to the CLRC recommendations, the future of Crown copyright remains uncertain.
For further information, please contact Jamie Doran.
