Copyright and the Parliament

The Copyright Act 1968 provides legal protection for a broad range of intellectual property, including books, articles, reports, computer programs, photographs, drawings, paintings, films, and television and radio broadcasts.

The Commonwealth of Australia has copyright in all publications and all published material produced by Commonwealth author organisations, including parliamentary departments.

The Parliament has enforceable rights in the copyright material it creates or commissions, but must comply with legal requirements when using copyright material owned by others.

Special provisions apply in relation to much of the Parliament’s dealings with copyright. In the Act, these include Crown copyright and the parliamentary library exemptions. Outside of the Act, parliamentary privilege also gives members of the Parliament and its committees special rights to use copyright material. This brief provides a short overview of these issues since it will often be necessary to consider copyright questions on a case-by-case basis. You should seek advice if in doubt as to whether an item is protected or any restrictions apply to its use.

Outline of copyright law

Copyright is designed to protect the rights of creators. The Act divides the material protected by copyright into two broad categories:

• original literary, dramatic, musical and artistic works (Part III), and
• subject-matter other than works which includes films, sound recordings, and TV and radio broadcasts (Part IV).

Note that a literary work is defined broadly and includes different types of textual material such as journal articles, novels, reports and computer programs.

Copyright gives copyright owners a number of exclusive rights in relation to their material, and permission is generally required if a person wishes to use the material in one of those ways. The particular rights differ depending on the type of material. In the case of a literary work, the owner has the right to:

• reproduce the work in a material form
• publish the work
• perform the work in public
• communicate the work to the public, and
• make an adaptation of the work.

An infringement of copyright occurs where a person makes unauthorised use, such as reproduction or publishing of the copyright material. An Australian copyright owner can take legal action in a country in which their copyright is infringed, and overseas copyright holders can take enforcement action if their copyright is infringed in Australia.

There are exceptions to the exclusive rights of copyright owners that enable the exercise of certain rights without constituting a copyright infringement. One important exception permits ‘fair dealing’ for certain specified purposes. A fair dealing with a copyright work will not amount to an infringement of copyright if done for the following purposes:

• research or study
• criticism or review
• the reporting of news
• the giving of professional legal advice, and
• the use is ‘fair’ in all the circumstances.

Usually the creator of a literary work is the first owner of the copyright in it, but there are exceptions. One important exception is that copyright in works made during the course of employment are owned by the employer and not the employee. Generally, under the Copyright Act, the Commonwealth claims copyright on all material written by its employees in the course of their employment, whether published or unpublished.

A copyright owner can assign their rights in copyright material. This generally involves the sale of all or some of the rights to a new copyright owner. One or all of the rights in an item may also be licensed, which gives another person the right to make agreed uses of the material. A licence may restrict the use of material to a particular place and for a defined period of time.

Parliamentary library exemptions

The Act contains specific exemptions from copyright infringement for parliamentary libraries in sections 48A and 104A. These allow library staff to make ‘any use’ of copyright material owned by others if it is for the sole purpose of assisting a member of parliament in their duties. The exemptions allow both reproduction and communication of copyright material without the need to contact or compensate the owner. In practical terms, these exceptions are critical for the provision of affordable and timely services by parliamentary libraries. In the case of the federal Parliamentary Library, they are the legal basis on which the Library carries out media-monitoring functions, develops databases of selected published material and copies material for senators and members.

The federal Parliamentary Library also enters into contracts for the provision of electronic databases and electronic journals from external publishers. The Library must comply with the provisions of those contracts. Any restrictions on use of these electronic resources is advised to Library clients though the Library’s catalogue and web pages.

Members of parliament should also be aware that the parliamentary library exemptions do not apply to their use of copyright material. One example of a use that may not be protected by the parliamentary library exemptions would be the placing of a copy of a radio or television broadcast or newspaper article on a member’s personal web site without the permission of the copyright owner.

Parliamentary privilege and copyright

Another protection afforded to members of parliament in regard to copyright material arises under parliamentary privilege. Parliamentary privilege provides protection against liability in cases where a member of parliament reproduces copyright material, but only in relation to those activities which come under the umbrella of ‘proceedings in Parliament’. This term would include presentation or submission of a copyright document to parliament or a parliamentary committee (Parliamentary Privileges Act 1987, subsection 16(2)). However, it would probably not include distribution of copies of works from an electorate office either in print or in electronic form for party political purposes.

Crown copyright

The Crown copyright provisions, which are contained in Part VII of the Copyright Act, establish a separate and more liberal scheme for government copyright subsistence, ownership and use.

When in government and acting in a ministerial capacity, a member of parliament can claim immunities granted to the Crown under the Act. That Act binds the Crown, but provides that nothing in the Act renders the Crown liable to prosecution for an offence, nor does it affect any prerogative right or privilege of the Crown. Further, the Act provides that where the use of copyright material is ‘for the services of’ the Crown, it will not infringe copyright in that material.

The various layers of copyright protection in the Act are complex and confusing. For example, copyright for literary works exists during the life of the author plus 70 years, works protected by Crown copyright provisions in Part VII are protected for 50 years, while works protected by the Crown prerogative are protected in perpetuity. The Act also provides partial waiving of copyright in relation to certain government documents, including Commonwealth and state legislation and the judgments and reasons of Commonwealth and state courts and tribunals (s. 182A).

The Crown copyright provisions were the subject of an inquiry conducted by the Commonwealth Government’s former Copyright Law Review Committee (CLRC) from 2003 to 2005. The inquiry recommended that the Crown subsistence and ownership provisions should be repealed. The rationale for the recommendation being that there is no reason for government to hold a ‘privileged’ position in relation to other copyright owners. The Howard Government did not respond to the CLRC’s final report.

Documentation
Attorney-General’s Department, Copyright Law in Australia: A Short Guide, Attorney-General’s Department, Canberra, June 2005.
Copyright Law Review Committee, Crown copyright: Final report, 2005.