Landmark case on Crown use of copyright material and media monitoring opens door to wider use by Government

Commonwealth, State and Territory Governments (and persons they authorise) have a defence to copyright infringement when they use copyright-protected material "for the services of the Commonwealth or State" – but what does that mean?  A recent case on a media monitoring service used by Government has gone a long way to answering that question, with the Federal Court saying section 183(1) of the Copyright Act 1968 (Cth) has a broad scope, and covers the use of copyright-protected material for activities which are "preparatory" or indirectly assist the relevant government entity to deliver services to the public, including media monitoring (Australian News Channel Pty Ltd v Isentia Pty Ltd [2024] FCA 363; the authors acted for Isentia).

Isentia's media monitoring service and use of Sky News Australia's content

Australian News Channel Pty Ltd (ANC), part of News Corp Australia, operates Sky News Australia, which delivers broadcast and digital news content across multiple platforms.

Isentia Pty Limited provides media monitoring services, including to Commonwealth, State and Territory Government entities.

In 2021 ANC gave an exclusive licence to another media monitoring organisation. This meant that from September that year, 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.

Under section 183(1) of the Copyright Act:

"The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the Commonwealth or a State, or by a person authorised in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State."

Relying on that, Isentia continued to provide Sky News content to its government clients that had provided an authorisation under section 183(1).

ANC asserted 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. Section 183(1), it argued, was only applicable if there is a direct connection between the act comprised in copyright and the provision of the relevant service by the government entity which receives the media monitoring services. The phrase “for the services of" the Commonwealth or State requires consideration of the particular service the governmental entity is said to be providing to the public, including why the otherwise infringing act must be done in aid of that particular service.

Isentia contended for a broader construction: acts done by a person authorised by a governmental body for the benefit of the government are within section 183. It is unnecessary to identify a particular “service” being provided by its government client and identify why the applicable acts were done for that service. The only relevant question was whether the acts which would otherwise constitute copyright infringement were being done for the benefit of the relevant government client in carrying out its functions.

Why Isentia could provide copyrighted material to its Government clients

Justice Burley preferred the broader construction advanced by Isentia, finding that "an otherwise infringing act will be "for the services of the Commonwealth or State" where it is done for the benefit of the Commonwealth or State, whether or not there is a direct connection between the act and services provided to citizens". The scope of the provision is broad; more particularly, acts that might infringe copyright done to assist a government agency, even where indirect or preparatory to the delivery of services, will also be "for the services of the Commonwealth or State":

"[T]he language of “acts done for the services of the Commonwealth or State” provides no intrinsic connotation limiting the type of acts to those done for the outward facing or end-use services provided by the Commonwealth or State. An otherwise infringing act is done for the services of the Commonwealth or State when the object or purpose of the act is to benefit the Government entity by assisting its employees or officers in the performance of their functions. The language of the section does not support the notion that there must be a “direct” connection between the act comprised in the copyright and the provision of a governmental service to citizens. Acts done that assist a government department to perform its proper functions will be no less for the services of the government because they have an indirect, back office or preparatory role."