Government access to copyrighted works

28 June 2024

The Copyright Act 1968 (Cth) s183(1) (Government Exception) allows the Commonwealth or State governments, and their authorised persons, to use copyrighted works without infringing copyright ‘if the acts are done for the services of the Commonwealth or State‘.

In Australian News Channel Pty Ltd v Isentia Pty Ltd [2024] FCA 363 (Australian News v Isentia), the Federal Court of Australia ruled that this protection applies to non-government entities who provide copyrighted works to the government. In making this decision, the Federal Court of Australia came to the conclusion that the Government Exception applies irrespective of if the copyrighted material was used by the government in providing services to citizens or for internal purposes.

Australian News v Insentia concerns a claim of copyright infringement by the Australian News Channel Pty Ltd (Australian News), which delivers Sky News Australia content, against Insentia Pty Ltd (Insentia), which provides media monitoring services for government. As part of providing this media monitoring service, Insentia extracted clips of Sky News Australia content including articles and videos and then provided these copies to government. The copyrighted materials were then used ‘to help brief senior government officials[,]… to assist investigations and enforcement action,… to gauge responses reported in the media to policy development and initiatives[,] and to gauge the effectiveness of government information campaigns.’

Australian News v Insentia was decided on the technical question of if ‘acts done for the services of the Commonwealth or State‘ is limited to (a) acts done for services provided by the Commonwealth or State to citizens or (b) acts done to provide services to the Commonwealth or State.

Previous cases had not dealt with this specific issue but had allowed the copying of survey plans by the New South Wales government so that they are available to the public1 and reproduction of the song ‘I am Australian’ by the Commonwealth government as part of Australian citizenship ceremonies.2 These acts all fall within the definition (a) provided above and the court therefore did not have to contend with if definition (b) is correct. The decision in Australian News v Insentia was that the Government Exception covered all acts that fall within the broader definition (b).

This marks an expansion of the Government Exception as it is the first time that a court has ruled that the Government Exception applies to copyrighted works that were not used to provide services directly to the Australian people.

However, the Federal Court of Australia did note that the Government Exception does not provide an immunity for Commonwealth and State governments to use copyrighted works, meaning that any use of copyrighted works is still subject to equitable remuneration. Australian News v Insentia does not examine what constitutes equitable remediation, but this exception does provide payment for copyright holders while also allowing governments access to material that they require.

HWL Ebsworth’s IP, Technology & Media team has extensive experience in advising businesses regarding copyright, contract and common law. If you are concerned about potential infringement of your copyright or how you can access and use copyrighted material, please contact us for further information on how we can assist you.

This article was written by Luke Dale, Partner and Max Soulsby, Solicitor.

1Copyright Agency Limited v NSW [2007] FCAFC 80.
2Pocketful of Tunes Pty Ltd v Cth [2007] FCAFC 90.

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