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 -

• introduction
• Crown copyright and the public domain in Australia
• Commonwealth and state/territory administration
• and in other countries
• who owns the law
• legislatures and copyright
• commercialisation and licensing of government databases
• the records of government
• and feudal relics?
• currency and stamps

A note on commercialisation of public sector information is here.

     introduction

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) legislation?

     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 material.

     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 such copyright.

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 paper The Future Management of Crown Copyright.

The situation in North America is discussed in David Vaver's paper 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 paper 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 (here).

     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 legislative instruments.

The High Court claims copyright in all its decisions "as the author of those decisions", noting that

It 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:

• that the decisions/extracts are reproduced in proper context;
• that the decisions/extracts are reproduced without alteration; and
• there is acknowledgement of the source, e.g. "copyright High Court of Australia.

The 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 that

Law 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

Outside 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 Postbox paper.

     legislatures and copyright

A 2003 New Zealand Parliament discussion paper asked

• what role should the State and the private sector play in providing access to legislation?
• what form should an official version of legislation take?
• on what basis should the Government charge for access to legislation?
• in what form should Bills be published?

That 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

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 -

• agencies are unfamiliar with markets and with sale/licensing of intellectual property, thus under-valuing (or over-valuing) their IP or concluding inappropriate contracts
• they 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

Areas 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 (PDF) 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 particular government?

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

free 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 given.

A 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 or otherwise.

     feudal relics?

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 paper 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, the European Union and the US. Specific features of the restrictions vary from one regime to another.

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 law.

Australia Post, for example, claims copyright ownership of Australian stamps for 50 years from publication. New Zealand's protection 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 Regulations to the Canada Post Corporation Act.

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