When one talks about the Government and copyright, it is usually about Government copyright policy. However, the Government is actually a large owner and consumer of copyright material. Government ownership and use of copyright tis defat wth under special provisions of the Copyright Act 1968. Government ownership is defat with in s 176 , while s 183 gives the Government a broad statutory licence with respect to use of copyright material. The provisions apply to both Commonwealth, State and Territory governments, but not local governments.
With the discussions about fair use and the extension of the copyright of safe harbouring Australia, some of us may have missed that the Australian Government published new Intellectual Property Rules in June and July this year. These comprise:
The Rules are designed to help Commonwealth Government agencies manage their own IP and their use of third party IP. The cover issues such as procurement, valuing IP, access, commercialisation, enforcement and working with Aboriginal and Torres Strait Islander Communities.
The Rules only cover the Commonwealth. In true Federal tradition, the States and Territories have their own IP Rules. It is therefore interesting to note that both Queensland and New South Wales have been in the Copyright Tribunal recently in relation to their use of copyright material under s 183 of the Copyright Act.
Copyright Tribunal of Australia and Government Use of Copyright
In November 2017, Copyright Agency commenced proceedings in the Tribunal against the New South Wales Government after a protracted dispute over the New South Wales Government print copying licence. We understand that mediation held in June was unsuccessful and the the matter will be proceeding to hearing. With a State election scheduled for March, it will be interesting to see how NSW justifies its non-payment of licence fees for print copying.
And further north, FueltTrac Pty Ltd has taken Queensland to the Tribunal to fix terms for its use of petrol pricing data sourced from FuelTra’s Reports. From my experience as a regulatory lawyer at the ACCC I know that petrol pricing data is very significant. Interestingly, Queensland has disputed the jurisdiction of the Tribunal, arguing that the FuelTrac Reports were not literary works within the meaning of the Copyright Act, that FuleTrac was not the owner fo any such copyright and that its use of the data did not amount to the reproduction or communication of a substantial part of any such copyright.
Back to fundamentals
It is a fundamental principle of copyright that there is no copyright in information. However, copyright will subsist in tables and other compilations providing they are the product of human skill and labour. According to the evidence before the Tribunal, the FuleTrac Reports were produced “by both electronic and manual means”. At first blush, this would seem to put them in a stronger position than the telephone directories in Telstra Corporation Limited v Phone Directories Company Pty Ltd which were produced by automated means leading the Federal Court to hold that they were not the subject of copyright protection.
Even so, it does not automatically follow that Queensland Treasury’s use of the Fueltrac data on its website amounted to a reproduction or communication of a substantial part of a substantial part of FuelTrac’s copyright material.
Greenwood P rejected FuelTrac’s submission that the Tribunal should hear and determine the factual matters while the Federal Court dealt with the questions of law raised by Queensland. In the President’s view, this course of action was undesirable or two reasons:
- The boundaries between fact-finding and the isolation of legal questions might be difficult to draw and there seems to be sense in a forum engaging with the totality of the questions in issue and deciding once and for all the totality of the factual and legal questions in issue.
- There may be a questions as to the Tribunal’s jurisdiction. Time and costs might be wasted if it is later found that the Tribunal’s jurisdiction was not properly engaged in undertaking the methodology suggested by Fueltrac.
Accordingly. Greenwood P stayed the proceedings in the Tribunal pending proceedings in the Federal Court to resolve the factual and legal matters.
Notwithstanding the articulation of IP Rules by Commonwealth and State and Territory governments, when it comes to negotiating licence agreements, there is little to distinguish the Crown from a commercial party.
The Fueltrac proceedings also reinforce the view that going to the Copyright Tribunal is rarely a shortcut. Indeed, with at least six matters currently on the Tribunal’s docket, it is likely to be a busy couple of years for the Tribunal and its new members.  Greenwood J was recently reappointed as the President. Mr Charles Alexander and Ms Sarah Leslie were appointed to the Tribunal at the end of last year.