Media Release: In test of Copyright Act, Clayton Utz client Isentia sees Federal Court win

The Federal Court has ruled in favour of Isentia in a case brought by Australian News Channel Pty Ltd (ANC), part of the News Corp Australia group. Clayton Utz acted for Isentia in the proceedings. This is the first case in Australia that directly considered the scope of section 183(1) of the Copyright Act in its application to the government. It's a key case for the media sector, particularly the media and communications professionals who support the government in performing its functions.

The case began in 2021 when ANC sought to prevent Isentia from providing Sky News media content to government agencies.

ANC operates Sky News Australia, which delivers broadcast and digital news content across multiple platforms including subscription television channels, a free-to-air regional television channel, the Sky News website and various social media channels.

ANC gave an exclusive licence to another media monitoring organisation. This meant that from 1 September 2021, there was only one media monitoring organisation in the Australian and New Zealand market able to provide customers with full content from Sky News Australia.

Relying on section 183(1) of the Copyright Act, which allows the use of copyright material for the services of the Crown, Isentia continued to provide Sky News content to its government clients that had provided an authorisation under that provision.

ANC commenced the Federal Court proceedings seeking declaratory relief as to the proper construction of section 183(1) of the Copyright Act and, specifically, asserting that the acts of Isentia undertaken in providing media monitoring services to government were not acts "for the services of the Commonwealth or a State" within the meaning of that provision. The Federal Court has dismissed the application by ANC, finding in favour of Isentia.

Partner Tim Webb led the Clayton Utz team, with key support from Senior Associates Joel Parsons and Francesca Teng, and Lawyer Carla Rank.

Commenting on the decision, Tim Webb said:

We're very pleased with the outcome of this case. It upholds Isentia's long-standing view that the government has the right to access and use copyright material including media content, as it assists the government to perform its proper functions.

The decision is Australian News Channel Pty Ltd v Isentia Pty Limited [2024] FCA 363. Access to and disclosure of the reasons for judgment is currently restricted pending confidentiality claims by the parties.