Immunities of Agents of Government from Liability for Infringement of Copyright

Abstract

Use of copyright works for the services of the Crown Section 7 of the Act states that the Act binds the Crown in all of its capacities in Australia. This makes it clear that the Crown may incur liability for infringement of copyright unless it can rely on one or more of the protective provisions in the Act. One such protective provision is s 183. This covers use of copyright works and other subject matter for the services of the Crown. 1 For the purposes of s 183 the Crown includes not _____________________________________________________________________________________ * Emeritus Professor of Law, Monash University. ** Senior Lecturer in Law, Monash University. We thank Moira Paterson for her valuable comments on an earlier version of this article. 1There is some debate as to whether this section applies to computer programs. For an interesting analysis of these provisions see Michelle Taylor-Sands and Kathryn Graham, 'Crown Use of Copyright Material and Computer Programs' (2001) 75 Australian Law Journal 566. 460 Federal Law ReviewVolume 30 ____________________________________________________________________________________ only the Crown in right of the Commonwealth but also the Crown in right of the States, the Australian Capital Territory, the Northern Territory and Norfolk Island. 2 There can be little doubt that copyright material would be used for the services of the Crown if it is used by Ministers and officers of their departments in the course of carrying out their governmental functions. Use of copyright material by royal commissions and like bodies established by the executive would also be covered, 3 likewise use of copyright material by statutory bodies whose function is to provide advice or render services to Ministers and departments of state. Statutory law reform commissions are an example. The matters into which they are to inquire and on which they are required to report are usually determined by a Minister of the Crown.Statutory bodies can clearly rely on the protection afforded by s 183 if they are agents of the Crown and if their use of copyright material is describable as being for the services of the Crown. 4 The question of what is an instrumentality of the Crown has been considered by courts, principally in the context of who and what come within 'the shield of the Crown' for the purposes of the common law presumption that the Crown is not bound by statutes. 5 The tests that have been developed for this purpose have been ones which have tended to limit the bodies which are manifestations of the Crown. The primary test is whether the body is subject to direction or control by a political executive in the performance of its main functions. The Australian Broadcasting Corporation enjoys considerable independence in the performance of its functions. It is not an agent of the Crown and its use of copyright material for its purposes has been held not to be for the services of the Crown, and thus not protected by s 183 of the Act. 6 The immunity conferred by s 183 is not, however, limite...

Copyright Perspectives

“…75 Refer Rose v Hrvic (1963) 108 CLR 353, 360. 76 For further discussion see Campbell and Monotti (2002). 77 No compensation is contemplated by any of these statutory provisions applying in the Commonwealth and States.…”