Copy that, Minister: Full Federal Court confirms the wide scope for government use of copyright material

Last year saw the Federal Court confirm the broad scope afforded to the government in the use of copyright material under section 183(1) of the Copyright Act. This was a landmark decision on the scope of section 183(1) in its application to the Government.

On appeal, the Full Federal Court has affirmed that decision, finding that on the proper construction of the statute, section 183 was intended to confer a broad permission to use copyright material, for any purposes of the Crown, subject to an obligation to pay reasonable compensation (Australian News Channel Pty Ltd v Isentia Pty Limited [2025] FCAFC 49; the authors acted for Isentia).

Isentia supplies ANC's content to Government

This case arose from a dispute between Australian News Channel Pty Ltd (ANC), the owner of Sky News content, and Isentia Pty Limited, a media monitoring service provider. Isentia provided ANC news content to various Australian government clients (without a licence from ANC) in the course of rendering media monitoring services to those clients. Isentia argued that its supply of content to government clients fell within section 183(1) of the Copyright Act 1968 (Cth), which provides:

"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." [emphasis added]

ANC sought a declaration that the acts of Isentia in the provision of media monitoring services to government clients were not "for the services of the Commonwealth or State". ANC argued that section 183(1) only applied if there is a direct connection between the act comprised in copyright and the provision of a governmental service to the citizenry.

Isentia contended for a broader construction: 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. On appeal, the Full Federal Court has now confirmed the broader operation of section 183(1).

The proper construction of section 183(1)

In construing section 183(1), the Full Federal Court undertook a detailed analysis of its legislative history, statutory text and context, as well as analogous provisions such as Crown use in patents, and principles of statutory interpretation grounded in the practical and commercial realities in which modern governments operate.

Their examination of the legislative history was "considerably illuminat[ing]" and made plain that services of the Crown was not limited to the provision of benefits to members of the public. Rather, section 183(1) was "intended to confer a broad permission to use copyright material, for any purposes of the Crown, subject to an obligation to pay reasonable compensation."

The Full Federal Court also rejected ANC's contention that the construction of section 183(1) requires a "granular" or "act-by-act" analysis, necessitating consideration of the particular acts comprised in the copyright which are being carried out, and that each specific use of a copyright work must be separately authorised by or attributable to the government. The Court considered such a construction would impose an unduly restrictive gloss on the provision, and therefore found that there is no requirement under the statutory scheme that the analysis of whether particular conduct falls within or without the protection of section 183(1) proceeds on an act-by-act basis.

Rather, the level of granularity at which the analysis is required to be performed in the context of a particular case will depend on the facts of the case. For example, if a narrow authority is granted by the Crown to a third party, then it may well be that a narrow act-by-act analysis is required. But if a general authority is granted, then the analysis will often be capable of proceeding at a higher level.

Ultimately, the Court concluded that section 183(1) was to have a broad and facilitative purpose and confirmed that the section authorises any use for the purpose of the Crown. Provided copyright material is used for the purposes of a Commonwealth or State department or other organisation, then the terms of section 183(1) will be satisfied. In rejecting the requirement ANC's submission that there must be a "direct connection" between the use of copyright and the provision of a government service to the public, the Court explained:

"Copyright material will be used for the purposes of a Department or other organisation of government if used as part of, or in order to facilitate or benefit, its activities. Those activities may well extend beyond the performance of statutory duties or powers. The legitimate undertaking of government departments and other organisations may include, in addition, a wide range of preparatory, incidental, educative, policy-making, and other related tasks."

Application of section 183 to Isentia's media monitoring services

In accepting that section 183(1) does not require that the use of copyright material by the government must have a "direct connection" to the provision of outward-facing services, the Court found that the evidence plainly demonstrated that the vast bulk of copying carried out by Isentia in the course of providing media monitoring services for their government clients was "unquestionably done 'for the services of the Commonwealth or State'".

The Court also considered what ANC referred to as "redundancy" in Isentia's copying of ANC news content. It was contended that Isentia's usual process of providing media monitoring services involved the copying of significant amounts of material that was argued to be unnecessary and never ultimately provided to a government client. However, the Court found that section 183(1) is not limited to otherwise infringing acts that represent the most efficient means of achieving an objective, or use of material in a way that minimises the use of a copyright owner's intellectual property. Rather:

"the critical question is whether copying is done “for” the services of the Crown. The fact that material is copied that is not provided to the Crown does not mean that it was not copied “for” the Crown. Here the so-called redundant copying still satisfies the statutory test for the simple reason that it was the means by which the contracted service was provided to the Crown."