In what represents the first judicial consideration of section 183(1) of the Copyright Act, Justice Burley’s judgment is highly relevant to businesses engaged by government entities, and government entities alike. It is equally relevant to the producers of a range of copyright works and subject matter that may be used by government entities and their employees or officers in the performance of their functions, because it clarifies the broad circumstances in which government entities and their service providers will be permitted do acts comprised in the copyright in such works.

The central question was whether Isentia Pty Ltd (Isentia) provides media monitoring services to its government clients ‘for the services of the Commonwealth or State’. If so, this would enable it to rely on section 183(1) of the Copyright Act, which provides an exception to copyright infringement and permits the Commonwealth or State (i.e. government), or anyone authorised by the Commonwealth or State, to do certain acts comprised in the copyright. Importantly, any entity relying on this exception remains subject to the obligation under section 183(5) to reach agreement with the copyright owner (or in default of agreement, approach the Copyright Tribunal) regarding remuneration for use of the copyright work. Those terms can be agreed or fixed after the relevant acts have occurred.

Does Isentia’s reproduction of news content fall within section 183(1)

Australian News Channel Pty Ltd (ANC) sought a declaration that acts done by Isentia to reproduce ANC’s news content for government clients do not fall within section 183(1).

ANC, through Sky News Australia, delivers broadcast content via subscription TV and free-to-air regional TV channels, and online content via the Sky News website.

Isentia provides media monitoring services to government and non-government clients, which involves identifying and supplying media items of interest to clients, making a copy of those items and storing them in its computer systems. Crucially, that process involves the wholesale copying of published articles and broadcast content, including Sky News content.

The Commonwealth Department of Social Services, National Archives of Australia and the Australian Capital Territory government were selected as being representative of Isentia’s government clients, for the purposes of the proceeding. Each had provided an authority to Isentia which warranted that, in order to provide its media monitoring services to the client, Isentia was required to do acts comprised in the copyright of works for the services of the Commonwealth or State.

It was not in dispute that Isentia was authorised by its government clients to perform the relevant acts and that the acts would, but for the defence contained in section 183(1), constitute copyright infringement. Therefore, the principal issue was whether section 183(1) could afford protection for the internal and indirect activities of Isentia relating to the provision of government services.

Was there a direct connection between the copying and provision of a governmental service?

ANC argued that an otherwise infringing act could only be done for the services of the Commonwealth or State if there was a direct connection between the act comprised in the copyright and the provision of a governmental service to citizens. It submitted that:

a) the language of section 183(1) focusses on copyright subsisting in a work, so the question of whether section 183(1) is satisfied should require that each particular copyright work be considered on a case by case basis, having regard to the specific work, and a similar analysis should be undertaken for each individual act comprised in the copyright. Therefore, the particular act comprised in the copyright should be shown to have been done for a permitted purpose.

b) the phrase ‘for the services of’ draws attention to what service the government is providing, and why the otherwise infringing act is being done for that particular purpose. As such, it is focussed on public services provided by the government, such as defence, foreign affairs, national security, social services, public health, and education. However, simply providing services which the government uses, or which are convenient for the government to receive, and relying on the fact that government in turn provides services of the same kind, should not be sufficient to enliven s183(1).

On that basis, ANC argued that Isentia’s conduct in providing news content for the government’s own consumption is too far removed from the provision by Government of a service to a citizen. Further, ANC argued that Isentia did not reach the evidentiary threshold necessary to establish the application of the exception, because it had not identified the specific government service it contributes to, nor led evidence from a representative of any government client to explain how the infringing acts were undertaken for the provision of a service by Government.

It also contended that some of the infringing acts cannot on any view be done for the services of the Commonwealth or State, pointing to the fact that Isentia copies the entirety of the broadcast of Sky News, but only a small portion of that is transferred to Isentia’s storage platform, and only a far smaller subset of that content is brought to the client’s attention – so a substantial amount of the copied material is never even used by Isentia, let alone a government client.

These submissions were ultimately rejected by Justice Burley, with his Honour's findings summarised below.

In contrast, Isentia argued that section 183(1) should be construed more broadly, so that any acts which are carried out 'for the benefit' of the government client are captured by the defence. It relied in part on affidavit evidence given by a Communications Advisor and a Consultant detailing their significant experience working in the public service, and the terms of government services agreements.

Findings regarding section 183(1)

Having regard to the ordinary meaning of the words 'for' and 'services', the legislative context of the Copyright Act, and previous cases considering provisions with language similar to ‘for the services of the State / Crown’, Justice Burley found that the function of section 183(1) is to confer on government a flexible ability to utilise copyright material in order to enable it to perform its functions, while also establishing as part of that scheme a streamlined process for remuneration. His Honour held that the section has a broad and facilitative purpose.

In particular, his Honour held that:

a) reference to ‘a’ work draws attention to the multiple types of copyright interest to which the section applies. It does not call for a granular copyright work by copyright work (or act by act) analysis;

b) ‘for’ is to be understood to mean ‘with the object or purpose of’, such that s183(1) applies where otherwise infringing acts are done with the object or purpose of the services of the Commonwealth or State. Importantly, his Honour held that this language does not naturally carry the limitations that ANC sought to impose;

c) ‘services’, in normal language and understood in the context of government, will be understood to include the supply of articles or services by the Commonwealth or State, which encompasses a broad range of activities in which a government may engage. It is not confined to outward facing or end-user services provided by the Commonwealth or State; and

d) acts done ‘for’ the supply of government services are likely to include steps taken in connection with the work of the government entity concerned. No distinction was drawn between work generally viewed as a governmental or public function, and work which is more commercial in nature.

Therefore, an otherwise infringing act is done for the services of the government when the object or purpose of the act is to benefit the government entity by assisting its employees or officers in the performance of its functions, whether or not there is a direct connection between that act and services provided to citizens.

Justice Burley recognised that governments must engage in 'indirect, back office or preparatory' acts in order to provide outward facing services. Based on evidence led by Isentia, Justice Burley held that it is important to the performance of the functions of the representative government entities to keep abreast of what is reported in the media. In order for government employees to develop and implement policy, to brief Ministers and senior public servants, and respond to the needs of the public, it is important to understand public discourse on subjects relevant to their functions. Media monitoring also assists in the conduct of investigations, such as regulatory breaches, and to inform government entities of responses to departmental policies. Further, media monitoring is time consuming and generally not feasible for government entities to conduct inhouse. Each government client briefed Isentia on its needs and particular interests with respect to media content that should be monitored, and conferred with Isentia to create relevant search terms. These client briefs also demonstrated the clear need for media monitoring in order for these government clients to function effectively. Justice Burley considered that the search terms used by Isentia as the basis of the provision of media extracts 'represents a good faith attempt by those involved to capture (predict) words or phrases likely to identify media items that are relevant' to the particular client in the performance of its duties.

Justice Burley did not agree with ANC that the fact that Isentia’s system resulted in some redundant copying of content never supplied to the clients resulted in section 183(1) not applying (even if there is a better system available which would involve less copying and less redundancy). The language of the section does not introduce any notion of ‘fair dealing’. He also held that providing irrelevant news items to a client does not mean provision of the service (which in any event necessarily filters content so that most material is relevant) is no longer for the government client’s benefit.

Practical considerations for the provision of government services

Based on this decision, the exception in section 183(1) of the Copyright Act could apply to a broad range of acts done to assist in the performance of any government services, not just those ‘outward facing’ services ‘provided to citizens’.

While media monitoring services were the focus, Justice Burley's analysis could be applied to other indirect or preparatory functions that take place within government departments and offices.

The decision also confirms that third parties who provide services to a government entity may also attract the exception, provided that the relevant government body gives written authorisation.

However, the government's rights under section 183 are not limitless. When seeking to rely on section 183, a government entity will need to actively consider the purpose for which it does (or authorises another to do) a specific act and identify an appropriate connection to its services. Also, based on Justice Burley's comments in respect of Isentia's efforts to limit captured materials based on carefully crafted search terms, it may be advisable to consider what steps, if any, can reasonably be taken to ensure that no more copyright-protected material is used than is necessary for the government's services.

It is also worth noting that section 183(11) expressly excludes the reproduction, copying or communication of the whole or a part of a work or other subject-matter for the educational purposes of an educational institution. This is explained by the existence of a separate education statutory licence regime.

Finally, while section 183 may represent an intrusion on a copyright owner's exclusive right to decide who it authorises to use its copyright protected material and for what purpose, it still requires that the terms of that use be either agreed with the copyright owner or, failing agreement, fixed by the Copyright Tribunal. This process ensures that copyright owners are compensated.

Some consequential matters that are not addressed by Justice Burley's decision include:

a) Who should enter into terms with the copyright owner where a service provider is involved in the relevant act; i.e. is it the government entity requiring the service, its service provider, or both?

b) In circumstances like this case, where a service provider does acts in respect of more works than are ultimately 'used' by its government client, is the copyright owner entitled to compensation in respect of all, or only some, of those copyright works and subject matter?

We encourage businesses providing services to government departments, and government departments themselves to re-evaluate their use of copyright material in light of Justice Burley's decision. Please reach out at any time for assistance.