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government and crown copyright
This page considers government as copyright creator and
copyright owner, along with questions about who owns the
law and geospatial data.
It covers -
note on commercialisation of public sector information
is here, along with
a discussion of statute
law, court reports and Hansard.
The intellectual property of the state and of individual
government agencies has a special status in copyright
and industrial property law. Variation between different
nations reflects differing conceptions of the relationship
between the state and its members. Variation also reflects
differing views on issues such as freedom of the press
and access to the law as the basis for civil society.
Electronic databases and publishing technologies are leading
to some questioning, with tensions evident for example
in debate about the commercialisation of geospatial data
assembled by governments for official purposes.
Is that intellectual property an asset to be exploited
by agencies or instead to licensed (for free or at a nominal
price) to any consumer who is prepared to abide by restrictions
against misuse? Have agencies - through inexperience or
lack of contact with the market - over-priced or under-priced
copyright, patent and other IP generated by staff/contractors?
Are they instead dampening innovation by sitting on IP?
Are traditional attitudes regarding crown copyright in
legislation and official reports in Australia and other
countries no longer appropriate?
And are claims of official copyright in current and archival
documentation being used to subvert the intentions of
freedom of information (FOI)
Crown copyright and the public domain in Australia
The Australian crown copyright regime - that is ownership
and handling of copyright by the Commonwealth, states
and territories (parliaments, courts, executive agencies
and vice-regal entities) - is based on that inherited
from the UK and largely reflects practice at the turn
of last century.
Part VII of the federal Copyright Act, discussed earlier
in this guide, deals with Crown copyright. It provides
that the Commonwealth is owner of the copyright in an
original artistic work made by or under its direction
or control, for example correspondence and reports prepared
by staff of government agencies during the course of their
duties and photography or other images commissioned by
such agencies. It specifies that no prerogative right
or privilege of the Crown is affected by the legislation.
The duration of Crown
copyright is for 50 years after the date when the work
is first published or (if the work is unpublished) so
long as the work remains unpublished. The period of protection
may thus be less than that for works by authors independent
of the state (with authors for example enjoying protection
for their life plus 50 years, as at 2004).
The state has an exclusive right to reproduce the work
in a material form, to publish the work and to sell, assign
or license the copyright. Subject to statutory defences
such as fair dealing, unauthorised reproduction of crown
copyright is an infringement of copyright.
Section 182A provides that in the case of certain prescribed
works, such as an Act or judgment, copyright is not infringed
by making one copy of the whole or of a part of that work
for a particular purpose, provided that any charge made
for making/supplying the copy does not exceed the cost
of making and supplying the copy.
In 2004 the Copyright Law Review Committee (CLRC) - a
federal government advisory body highlighted earlier in
this guide - released a discussion paper
on Crown Copyright. The paper asked whether copyright
should subsist in government material, in whom it should
be vested and under what circumstances. It noted options
for reform ranging from abolition of statutory copyright
and Crown prerogative (vesting copyright either privately
or in the public domain), to its retention with improved
administration. Governments, in retaining copyright, might
create a special exception to infringement for government
Commonwealth and state/territory administration
At the federal level within Australia the Commonwealth
Copyright Administration (CCA)
administers copyright in Commonwealth publications. That
coverage includes legislation but excludes judicial judgments.
The CCA - formerly within the the Department of Communications,
IT & the Arts but now part of the Attorney-General's
Department - is essentially a postbox. Its primary function
is to grant permission to reproduce copyright created/commissioned
by executive agencies. Where the use is 'not for profit'
permission is generally granted and no fees are charged.
Permission is usually granted subject to a fee where use
has a commercial basis. All permissions granted are subject
to acknowledgement of Commonwealth copyright.
The CCA does not administer copyright in unpublished material:
the entity that created the unpublished material administers
In the case of legislative material, discussed below,
the Commonwealth has issued blanket licences to publishers
and educational institutions. For judicial material the
courts administer copyright in their own judgments.
At the State level there is a variety of practices. Licences
are generally used to authorise private use of government-owned
copyright. Copyright is either administered by a central
body, by each individual body, or a combination of both.
Some States have also issued policies and guidelines as
to how government owned copyright should be managed.
Most of the Australian states and territories have established
a Council of Law Reporting, constituted by legislation
that varies between jurisdictions. The role of each Council
is typically to prepare, publish and sell (or arrange
for the preparation, publication and sale of) reports
of judicial decisions.
state copyright in other countries
In the United States the federal government does not have
copyright within the US to works produced by government
agencies. Those works are treated as being in the public
domain in the US, although the federal government has
not relinquished protection outside its borders. On occasion
protection has thus been sought and obtained in other
countries by US government agencies.
Some federal agencies have statutory authority to impose
conditions for use of copyright and industrial property,
with the US Forest Service Smokey Bear for example being
taken out of the public domain in 1952.
US state and municipal governments can claim copyright
in works produced by their agencies.
In Canada the federal and provincial governments have
protection under crown copyright provisions of the national
Copyright Act. Municipal agencies also have protection.
In the UK crown copyright is considered to encompass material
is produced by employees of the Crown in the course of
their duties: most material originated by ministers and
civil servants in the course of official business is thus
protected. Some UK Crown copyright material is covered
by waiver conditions, with ownership being asserted but
waived so that the material can be re-used free of charge
without a formal licence subject to acknowledgement, accurate
reproduction and avoidance of use in a misleading way.
For the UK regime see Adrian Sterling's paper
Crown Copyright in the United Kingdom & other
Commonwealth Countries, Gordon Robbie's 1996 paper
Crown Copyright - Bête Noire or White Knight?,
the more recent UK government paper
Crown Copyright in the Information Age and associated
The Future Management of Crown Copyright.
The situation in North America is discussed in David Vaver's
Copyright & the State in Canada & the United
States and Bradley Mitchell's 2002 thesis
Works of the United States Government: Time to consider
Copyright Protection, supplemented by William Stanbury's
Aspects of public policy regarding crown copyright
in the digital age and Paul Manz' 2002 Protecting
Government Works: The Copyright Issue (PDF).
US federal government patenting is identified in a 2003
USPTO report (PDF).
There is a broader account in Fredrik Cederqvist's succinct
Copyright of Government Works: An International Survey
who owns the law
Variation in approaches to the copyright of executive
agencies is reflected in differing national/provincial
stances regarding copyright in court decisions.
In Australia the Commonwealth government issued commercial
publishers and educational institutions with a broad blanket
licence in 1983 permitting for multiple reproductions
of Commonwealth legislative materials such as Bills, Explanatory
Memoranda, Acts, Statutory Rules and other delegated legislation.
That licensing is consistent with the federal Legislative
Instruments Act 2003 (here)
that provides for registration of and access to all Commonwealth
The High Court claims copyright in all its decisions "as
the author of those decisions", noting that
has been, and remains, the policy of the High Court
to permit free and unlimited reproductions of its decisions,
or extracts of its decisions, subject to three conditions:
the decisions/extracts are reproduced in proper context;
the decisions/extracts are reproduced without alteration;
is acknowledgement of the source, e.g. "copyright
High Court of Australia.
Court retains copyright in the actual text of the decision,
which may thus be reproduced freely subject to the above
conditions. Publishers claim copyright over such features
as pagination, headnotes and sidenotes, comments, crossreferences
and other editorial material in their published versions
of those decisions and in transcriptions of oral judgements.
In New Zealand section 27(1) of the Copyright Act
1994 - in effect from 2001 - provides that no copyright
exists in judgments of any NZ court or tribunal and in
reports of Royal commissions, commissions of inquiry,
ministerial inquiries, or statutory inquiries.
In the UK the Attorney General in 1995 authorised publishers
to reproduce 'judicial decisions' without infringing Crown
copyright in that material, subject to certain conditions.
That authorisation was extended to 'legislative material'
in 1996 and has been characterised as a "notice of
non-enforcement of Crown copyright".
Academic debate in the UK and Australia about the status
of court decisions and other content - notably suggestions
that copyright rests with the Crown because Justices are
servants of the Crown - has not been tested.
In the US court decisions are regarded as being in the
public domain and thus freely reproduceable. In practice
dominant legal publisher West Publishing - responsible
for works such as the Supreme Court Reporter
and Federal Rules Decisions - enjoys a favoured
status because many judges require citations to its publications
and the Westlaw database. Competing publishers are free
to compile alternative collections of federal and state
decisions but in the absence of West's citable page numbers
- metadata for the decisions
- those collections are of little value.
West's claim of protection for its editorial contribution
has survived challenges from rival publishers and arguments
is the only publication to which every citizen of the
U.S. has a constitutional right of access. To subject
law to the monopoly of copyright that empowers the copyright
holder to charge a license fee for its use is a situation
analogous to imposing a poll tax on the right to vote
the US it has been suggested that similar refusals to
license on reasonable terms might offend competition law
and justify compulsory licencing. The American Bar Association
has, perhaps more practically, been moving
towards establishment of a Universal Citation Guide.
Tom Bruce's 1995 paper
Legal information, open models and the information
highway and 2000 paper
Tears Shed Over Peer Gynt's Onion: Some Thoughts on
the Constitution of Public Legal Information Providers
highlights particular issues.
For Australia see in particular Judith Bannister's Open
access to legal sources in Australasia: Current Debate
on Crown Copyright and the Case of the Anthropomorphic
legislatures and copyright
A 2003 New Zealand Parliament discussion paper asked
role should the State and the private sector play in
providing access to legislation?
form should an official version of legislation take?
what basis should the Government charge for access to
what form should Bills be published?
reflected international debate about access to legislation
and parliamentary proceedings, including questions about
whether 'definitive' versions of legislation could be
provided online. It also reflected the 2001 changes to
the NZ Copyright Act 1994 noted above, which
provided that no copyright exists in any Bill introduced
into the NZ House of Representatives, any Act (defined
in the Interpretation Act 1999) and regulations (in the
Acts & Regulations Publication Act 1989), Parliamentary
Debates and reports of select committees.
In Canada the national government has issued a free licence
for the copying of federal law: federal statutes and regulations
(including consolidations) may be copied without the usual
restrictions of Crown copyrighted materials. There is
no requirement to seek permission and there are no fees.
In the UK 'Parliamentary copyright' is defined by Section
165 of the Copyright, Designs & Patents Act 1988
as works made by or under the direction or control of
the House of Commons or the House of Lords, including
Hansard and Journals, Lords Minutes and Commons Order
Books, Statutory Instruments lists and Bills of Parliament.
The 1999 White Paper on The Future Management of Crown
Copyright indicates that commercial print/electronic
republishers in form may continue freely to reproduce
UK legislation but must be accurate, acknowledge sources
and add value "by compilation with other related
text, analysis, commentary, annotation, indexing or cross-referencing".
The UK emphasis on value-adding reflects concerns that
"simple reproduction without added value could interfere
with the profitability of outsourced private printing
carried out under contract with the government".
Reproduction must be accurate and "in a fashion and
context which is in no way misleading as to its intended
meaning and application". It "may not be used
in connection with advertising, endorsement or any form
of undignified association", be defamatory, for overtly
political purposes or "purport to be published by
authority of Parliament or of either House of Parliament,
or by the authority of Her Majesty's Stationery Office".
Commercialisation of government data sets - and more broadly
of other intellectual property created by the staff of
government agencies or commissioned by those agencies
- poses a range of challenges.
One issue is that agencies in some governments are under
pressure to increase revenue and are thus susceptible
to arguments that they should 'unlock' sleeping assets.
Commercialisation may be problematical because -
are unfamiliar with markets and with sale/licensing
of intellectual property, thus under-valuing (or over-valuing)
their IP or concluding inappropriate contracts
are seeking to exploit community resources, in particular
entering into exclusive relationships with commercial
partners regarding information that was provided to
the agency on a mandatory basis
of particular concern are geospatial datasets and statistical
information. Restrictions on access to reports and technical
material, including standards and training documentation,
are an irritant in particular regimes.
Henry Perritt Jr's paper
Should Local Governments Sell Local Spatial Databases
Through State Monopolies? and Anne Branscomb's Who
Owns Information? From Privacy to Public Access (New
York: Basic Books 1994) highlight some US concerns.
Practice within Australia varies. Partial guidelines for
Commonwealth government commercialisation of copyright
are provided by the 2001 Commonwealth IT IP Guidelines:
Management & commercialisation of Commonwealth intellectual
property in the field of information technology (here)
from the Department of Communications, Information Technology
& the Arts. Commissioning, sale and licensing by particular
Commonwealth agencies such as galleries and policymaking
bodies varies considerably.
At the state/territory level representative policies of
varying sophistication are the 2003 Western Australian
Government Intellectual Property Policy & Best
Practice Guidelines (PDF)
, Queensland Public Sector Intellectual Property Principles
and Tasmanian Guidelines for the administration of
Crown copyright (PDF).
the records of government
What of the unpublished current and archived
records of government: internal reports and memos, cabinet
papers, interdepartmental correspondence, electronic mail
and letters to individuals or other entities outside a
In the UK the national government has announced that although
Crown copyright will continue to subsist in public records,
it will not be enforced "except as an ultimate protection
against abuse", with users being
to copy, index, transcribe and publish without requiring
specific formal permission. There will be no requirement
for any payment to be made for such reproduction or
for acknowledgements to be featured. The appropriate
record office's custody of the original document must
... be acknowledged, and the archival document reference
similar regime is in place in Australia and Canada. In
New Zealand the duration
of Crown copyright is for 100 years after the date when
the work is first published or (if the work is unpublished)
so long as the work remains unpublished. Canada and Australia
have a more modest 50 year period. Most crown copyright
in the UK currently subsists for 50 years from the end
of the year when the work was first published if published
within 75 years of being created (otherwise protection
is for 125 minus the number of years since the work was
created), with works made by or under the direction or
control of the House of Commons or House of Lords being
protected for a flat 50 years from the year of creation.
At the federal level in the US the national government
has relied on secrecy or other provisions rather than
copyright in seeking to restrict publication of individual
documents or large-scale publication of collections such
as the Pentagon Papers obtained under FOI
The derivation of copyright in anglo-saxon regimes from
royal licensing has resulted in some anomalies. In the
UK the King James Version (aka Authorised Version) of
the Bible and the Book of Common Prayer are currently
subject to a perpetual crown copyright, reflecting its
status as an official document of the established Church
of England (and Church of Scotland). Protection dates
from initial Letters Patent in 1611.
Copyright protection is not available for heraldic designs
such as coats of arms issued by delegates for the UK crown
over past centuries. That is explored in Noel Cox's 2001
The Intellectual Property Laws and the Protection
of Armorial Bearings.
currency and stamps
Most nations impose restrictions outside copyright law
on reproduction of currency.
Examples include restrictions under the Australian
Crimes (Currency) Act 1981, the Reserve Bank
of New Zealand Act 1989 in New
Zealand, the UK
Forgery & Counterfeiting Act 1981 on copying
of banknotes ("to prevent counterfeiting and prevent the
Queen's portrait being distorted or shown in offensive
surroundings"), in Canada,
Union and the US.
Specific features of the restrictions vary from one regime
In Canada for example the national Mint regulations require
that if a Mint product - notably a Canadian coin - is
used for advertising "it is done tastefully, and
is compatible with the public policy objectives of the
federal Government". A user must apply for the right
to use the image, pay a application fee of "not less
than $350" for processing the request, and a royalty
of between 1% and 21.5% of the value of the advertising
campaign. The Mint foreshadowed legal action against the
city of Toronto in 2007 over unauthorised use of a coin
image in the city's advertising campaign.
In contrast, postage stamps are often protected by copyright
Australia Post, for example, claims copyright ownership
of Australian stamps for 50 years from publication. New
is for 100 years. In the US stamps and other postage items
published prior to 1978 are in the public domain; copyright
in subsequent philatelic items is held by the UPS which
allows reproduction for education, reporting and other
purposes (eg in philatelic catalogues). Canada provides
protection under the Reproduction of Postage Stamps
to the Canada Post Corporation Act.
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