Regular readers will know that I am somewhat inclined to overreaction when the legislature or the judiciary does something with respect to copyright law that I believe errs against reason, common sense, and all the laws of God and mankind. Yesterday's High Court decision in Copyright Agency Limited v State of New South Wales [2008] HCA 35 was possibly one of them, but rather than continue that rant I want to focus on the aftermath on the case.

In the course of the decision, the High Court referred to the position in other jurisdictions with respect to Crown use of copyright works. It cited the UK position under the Copyright, Designs and Patents Act 1988 (UK) and the different types of what it would describe as "free use provisions" under that law. These are exceptions to infringement on the grounds of different types of public administration:

• Section 45 -"Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings" and the reporting of such proceedings;
• Section 46 - "Copyright is not infringed by anything done for the purposes of the proceedings of a Royal Commission or statutory inquiry", its reporting and the issue to the public of a report of the Royal Commission or statutory inquiry;
• Section 47 - Where material is open to public inspection due to a statutory requirement or statutory register, copyright is not infringed in a literary work in certain cases and not including the issuing of the work to the public; however pursuant to section 47(2) "copyright is not infringed by the copying or issuing to the public of copies of the material, by or with the authority of the appropriate person, for the purpose of enabling the material to be inspected at a more convenient time or place or otherwise facilitating the exercise of any right for the purpose of which the requirement is imposed" etc.
• Section 48 -The Crown can communicate material to the public in the course of public business, and "copy the work and issue copies of the work to the public without infringing any copyright in the work."
• Section 49 - Material comprised in public records can be copied and supplied to any person without infringing copyright.
• Section 50 - "Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright."

My immediate response to the CAL v NSW High Court decision (admittedly after the initial shock) was that the Federal Government could introduce provisions along these lines that would allow it to use materials for certain circumstances for free, beyond the fair dealing provisions, which would allow it to get around the issues created by the statutory licence scheme. Yes, the statutory licence scheme is actually supposed to ensure that copyright owners get paid for many of these types of uses. However, surely we can distinguish between uses that are connected to the undertaking of a statutory requirement and other uses for which the copyright owner should be remunerated. For example, a department produces a fact sheet on the perils of sunburn and uses as part of that fact sheet copyright protected photographs of people enjoying themselves at the beach. There is arguably no reason why such photographs need to be included, and in this case it would be preferable for the government to be charged for the use of those particular photographs.

Even without that distinction, however, another argument rears its head: the constitutionality of introducing such free use provisions. Two sections of the Australian Constitution would arguably be involved: section 51(xviii), which gives the Federal Parliament the power to make laws with respect to "Copyrights, patents of inventions and designs, and trade marks"; and section 51(xxxi), which also provides power to the Federal Parliament to make laws with respect to "The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws."

I have just realised that this post is getting very long, so it is going to be split into two. Constitutional analysis forthcoming!

Labels: cases, catherine, copyright, Crown copyright, High Court of Australia, licensing