10 June 2004
Key Points:
There is a need for a common and coherent set of principles governing the ownership of all public sector information.
Against a growing tide of concern over public access to information and competition policy, the Copyright Law Review Committee ("CLRC") has been directed by the Attorney-General to review and make recommendations about the Government's ownership of copyright material. The CLRC has prepared an Issues Paper encouraging submissions from interested parties. The key issues raised by the paper include: the appropriateness of the legislative scheme establishing Crown ownership of copyright; the application of copyright law to executive, legislative and judicial material; and options for reform of the current scheme. More specific questions are also asked, providing the foundation for a comprehensive review of Crown ownership of copyright.
The findings of the Committee will be provided by the end of November 2004. It is expected that they will have significant implications for the ownership and use of information in the public sector.
Current position
The Copyright Act 1968 currently puts the Commonwealth and State governments in a privileged position in relation to ownership of copyright. Material which is first made by, or on behalf of, a Government is first owned by the Government unless there is an agreement to the contrary. In addition, copyright in material first published by a Government automatically passes to the Government, unless there is an agreement to the contrary.
Part VII of the Act provides for the subsistence, ownership and duration of Crown copyright in certain original works, sound recordings and cinematograph films, subject to an agreement to the contrary. The most important right of the Crown is in section 176(2), which states that,
"The Commonwealth or a State is… the owner of the copyright in an original literary, dramatic, musical or artistic work made by, or under the direction or control of, the Commonwealth or the State, as the case may be."
This is effectively a "work for hire" doctrine which operates in favour of the Crown. Government departments often commission private sector individuals and organisations to produce copyright works for the Crown. As part of the contractual process, the copyright in these commissioned works is automatically assigned to the Crown. This gives the Government preferential treatment over other contractors or employers, who only become copyright owners under an assignment in writing, or subject to the terms of an employment contract. Therefore, the Government is not subject to normal contractual negotiations.
There are, however, two areas in which the provision is most likely to be challenged. These are: the meaning of the words, "by or under the direction or control of", and the definition of what constitutes "the Crown".
What does "by or under the direction or control of" mean?
There is no judicial decision as to the meaning of "by or under the direction or control of", creating uncertainty about the ownership of Government-commissioned works, such as software. For example, section 176(2) will not necessarily apply to development work of a complex computer program designed to achieve a specified result in circumstances where the means of achieving that result is not sufficiently specified. The question of whether the making of a work was "under the direction or control of" the Commonwealth or the State would also arise in the case of a software house engaged to carry out modifications to a standard package to ensure that the package can then be used by Government departments.
This uncertainty has been clarified by specific provisions in many public sector contracts which expressly assign copyright. An example can be found in version 2 of the Government Information Technology Conditions ("GITC"), which oversees common use contracts relating to information technology in New South Wales, Queensland and Tasmania. Clause 56 of the GITC holds that intellectual property created in the course of work for the Government is assigned to the Government upon creation unless the contract specifies otherwise.
What is the Crown?
The diversity and variety of official bodies producing material can certainly be confusing. The "Commonwealth or State" includes Government departments, but may not extend to independent statutory authorities such as commissions or statutory corporations. In determining whether or not a body is an authority of the Commonwealth or a State the primary focus is on Government and the function of Government. No one factor is necessarily decisive and it is a question of fact and degree in the circumstances, depending on the powers, structure and function of the body; the degree of control exercised by the executive of the Commonwealth or State over the body; and the context of the statutory scheme in which the body operates.
The key issue appears to be the degree of independence from the relevant Minister exercised by the body in question, but a decision in relation to a particular body will always depend upon the surrounding circumstances.
Criticism of the Crown's ownership of copyright under the Act
The principal rationale for Crown ownership of copyright is that it minimises the costs to the Government, and to the taxpayer, of the dissemination of public works, and it also ensures that official information is protected against misuse or misrepresentation.
While it is important for the Crown to exercise contractual control over the accuracy and integrity of official records, the restrictions on public access to this information have led to calls for a policy that holds the Government more accountable.
The Crown's ownership of copyright under Part VII of the Copyright Act is furthermore in conflict with the competitive neutrality principles of the National Competition Policy, outlined in section 3(1) of the Competition Principles Agreement which says that "… Government businesses should not enjoy any net competitive advantage simply as a result of their public sector ownership."
Conclusion
There appears to be growing support for the removal of Crown ownership of copyright, as it is seen as creating an unnecessary barrier to the access of Government information. This is compounded by the current state of the law, which has not yet given clear meaning to section 176 of the Act.
There is a need for a common and coherent set of principles governing all public sector information. The reforms suggested by the CLRC's Issues Paper range from the making of administrative changes to the complete abolition of Government ownership of Crown copyright, although there is plenty of middle ground to be covered. Where sound policies exist, Crown ownership of copyright can be tailored to recognise and respond to public interest considerations. It is expected that the review by the CLRC will examine the Government’s role as disseminator of information and its role as proprietor of information in order to develop a best practice policy for Crown ownership of copyright.
For further information, please contact Jacqueline McStay.
