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JILT 1996 (3) - Judith Bannister

Open Access to Legal Sources in Australasia:

Current Debate on Crown Copyright and the Case of the Anthropomorphic Postbox

Judith Bannister
University of Western Sydney, Nepean
j.bannister@nepean.uws.edu.au


Contents

 

Abstract
1. Introduction
2. Australia
2.1 Statutory and prerogative rights of the Crown
2.2 Statutory licence to make 'reprographic reproductions' of some legal sources
2.3 Baillieu and Poggioli v Australian Electoral Commission and the Commonwealth (the postal votes case)
2.4 Use of Crown copyright to ensure accuracy of sources
2.5 Waiver of Crown copyright
2.6 Abolition of Crown Copyright
2.7 Current CLRC Review
3. New Zealand
4. Australasian legal sources on the Internet
4.1 LIINZ
4.2 AUSTLII
References

 

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Abstract

This article discusses current law on Crown copyright and royal prerogative rights in Australia and New Zealand in relation to legal sources, and reports on proposals for reform. Waiver or abolition of Crown copyright in a limited range of legal sources seems to be preferred by those governments that have considered the matter, rather than a complete release of government documents into the public domain.

The impact of Crown copyright on public access to legal sources in electronic form is discussed. The author argues: that access to legal sources is essential in a democracy; that full protection in the nature of copyright is unnecessary to ensure accuracy of sources; and that if a limited waiver of Crown copyright is preferred to general release of government documents into the public domain, the categories should include all extrinsic sources produced by government which are necessary for the interpretation of primary legal sources.

The Federal Court, in a recent case involving applications for postal votes, has considered provisions in the Australian Copyright Act 1968 (Cth) that facilitate access to reprographic copies of legal sources. This case, and the limited application of the provisions to "reprographic copying", are discussed.

Two major projects have been launched in the last 18 months to provide free access to legal sources on the Internet: AustLII in Australia, and LIINZ in New Zealand. Details of these sites are provided.

The author asserts her moral rights


This is a refereed article.

Date of publication: 30 September 1996.

Citation: Bannister J (1996), 'Open access to legal sources in Australasia: Current Debate on Crown Copyright and the Case of the Anthropomorphic Postbox', 1996 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/elj/jilt/leginfo/3bannist/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_3/bannister/>


1. Introduction

'...[O]f supreme importance to the continuance of the rule of law under the British constitution [is] the right of the public affected to know what that law is...The maxim that ignorance of the law does not excuse any subject represents the working hypothesis on which the rule of law rests in British democracy. That maxim applies in legal theory just as much to written as to unwritten law, i.e., to statute law as much as to common law or equity. But the very justification for that basic maxim is that the whole of our law, written or unwritten, is available to the public - in the sense, of course, that at any rate, its legal advisers have access to it, at any moment, as of right.'

Scott LJ Blackpool Corporation v Locker [1948] 1 KB 349, 361.

Public access to the sources which record the law is essential in a democracy. As the above quote from Scott LJ emphasises, the presumption that everyone knows the law, [1] and the concomitant rule that ignorance of the law is no excuse, are founded upon a public right of access to the sources of those laws. While Scott LJ would, in 1947, have limited this access, as of right, to the public's legal advisors, it is now generally recognised that legal sources should be made accessible to the entire community. This has been acknowledged in Australia by a range of authorities including the Senate Standing Committee on Legal and Constitutional Affairs (1993) which, in a report on the cost of justice, stated:

'People are assumed to know the law. They are punished for breaches of the law even though ignorant of it. It is therefore essential that Parliament use every reasonable endeavour to make the law known and accessible to all in the community.' (Senate Standing Committee on Legal and Constitutional Affairs; 1993, p. 15)

There are many barriers to public access to legal information, not the least being the incomprehensibility of the language used in legal sources. Open access to the primary sources of law is an essential starting point; other barriers may still need to be dealt with. Legislation, reports of cases, and extrinsic material necessary for interpretation of the law should all be readily available at low (ideally no) cost. Electronic access can facilitate availability. Whether the costs of access can be kept low, and so be truly accessible, depends upon the will and co-operation of the institutions which produce the primary sources. In Australia and New Zealand the subsistence of Crown copyright can act as a significant barrier. The May issue of JILT featured a number of articles on the topic 'Open Access to Legal Information' with an emphasis upon Crown copyright in the United Kingdom and the proposals to privatise Her Majesty's Stationary Office. In his article 'Crown Copyright and HMSO', Professor Oppenheim (1996) argued that materials produced by the Crown and Parliament should be in the public domain, and suggested that the United Kingdom is 'out of line' with many other countries, most notably the United States of America.

The United Kingdom is joined 'in line' by Australia and New Zealand in granting copyright protection to government. Both countries have closely followed the UK model in copyright law, as they have in many other areas of law. Australia's current Act ( Copyright Act 1968 (Cth)) is based upon the 1956 British Act. New Zealand's new Copyright Act 1994 closely follows the Copyright, Designs and Patents Act 1988 (UK) to the extent that it includes 'confer' references to the British Act. Interestingly, Crown copyright is one area in which the New Zealand departs from the British model. The New Zealand Act includes a provision which, when (if?) it comes into force, will place legislation, judgements, Parliamentary debates and the reports of Royal Commissions in the public domain.

Debate over Crown copyright in official legal sources surfaces regularly in Australia. The issue has been raised again recently in a major review of copyright law being undertaken by the Copyright Law Review Committee (CLRC). Copyright in certain official publications has been waived by the New South Wales Government, and the policy statement of the new Liberal (conservative) government released before the March 1996 election included an undertaking to establish a Crown copyright waiver scheme for legislation, transcripts and related documents. The policy statement acknowledges that retention of copyright by government of copyright in legal sources imposes an 'unnecessary cost or barrier' to access to the law.

While we await legislative reform to facilitate electronic access, a recent Federal Court decision in a case involving the Liberal Party and the Australian Electoral Commission has interpreted a section in the current Australian Act which allows certain 'reprographic' copying of legislation and case law.

Against this legislative background, two major projects are being undertaken to provide free access to Australasian legal information on the Internet: the Australasian Legal Information Institute (AustLII) which has been operating since 1 January 1995; and the Legal Information Institute of New Zealand (LIINZ) which commenced operations on 19 June 1996. The existence of Crown copyright in official legal materials has necessitated extensive negotiations for the inclusion of materials on these sites. There is still a range of primary legal materials, particularly legislation and case law from various Australian States, which is not available on the Internet.

2. Australia

2.1 Statutory and prerogative rights of the Crown

The Crown owns copyright in right of the Australian Commonwealth and States pursuant to Part VII of the Copyright Act 1968 (Cth), and also has prerogative rights over certain legal sources which are preserved by section 8A of the Act.

Prerogative rights are derived from the power of the British Sovereign and include, for example, the power of the Crown to declare war or coin money, and proprietary rights over treasure trove. The extent of the prerogative rights is not easily determined in 20th century Australia. (Evatt H, 1987, p. 8) However, the Crown's prerogative right to print and publish Acts of Parliament, proclamations, and Orders of Council was recognised in Attorney-General for New South Wales v Butterworth & Co. (1937) 38 SR (NSW) 195. The source of the prerogative was identified by Long Innes CJ as follows:

...the real reason and origin of the prerogative in regard to statutes [is], namely, the duty resting upon the King, as first executive magistrate, to superintend the publication of acts of the legislature and acts of state of that description, carrying with it a corresponding prerogative. (p. 229)

As will be discussed further below, the Crown is also granted copyright under statute. While distinct, there is some overlap between statutory copyright and the prerogative in the nature of a copyright. There are also certain significant differences. The Crown is granted copyright in a far wider range of materials under statute, with more extensive rights such as broadcasting. The duration of statutory copyright is limited, while prerogative rights operate indefinitely. Another distinction, relevant in Australia's federal system, is that the Crown exercises its prerogative in right of the States, independent of the Commonwealth's copyright legislation.

Under sections 176 and 177 of the Copyright Act 1968 (Cth), copyright vests in the Crown [2] when an original literary, dramatic, musical or artistic work [3] is made, or first published, by or under the direction or control of the Commonwealth or a State. The protection period for published Crown works is from creation until 50 years after the expiration of the calendar year in which the work was first published (s. 180 (1)(b)) [4]. This, at least, brings published government documents into the public domain sooner than most literary works, [5] although the Crown's additional prerogative rights in relation to certain materials must still be considered. Where a work is unpublished, Crown copyright 'continues to subsist so long as the work remains unpublished' (s. 180 (1)(a)).

The concept of 'direction or control' extends beyond material written by government employees to commissioned works, and the right to material first published by the Crown increases the range of material covered even further. Whether the Crown ought to be entitled to such extensive protection has often been questioned. Authors and their representatives protest at being denied copyright when they are commissioned by a government department, and when the government is the first publisher of their work. [6] The duration of copyright in such material may also operate unfairly for authors and other creators who work under the direction or control of government, even if they are able to negotiate alternative arrangements for ownership under s. 179 of the Act. This is especially so for artists. The somewhat complex s. 180 duration provisions [7] apply to works where 'the Commonwealth or a State is the owner, or would, but for an agreement to which [s. 179] applies, be the owner'. So authors who negotiate for ownership of copyright in their works created in association with government may find that a protection period of 50 years from publication or making applies, rather than life plus fifty years. Early release into the public domain of official documents relating to the administration of government and the law can be justified on public policy grounds (indeed they ought always to be so available). However, governments are often involved in the production or first publication of a diverse range of materials. The present Australian Act operates to vest copyright in a wide variety of material in the Crown, and reduce the protection period of works which may have little if anything to do with the traditional functions of government. At the same time, Crown copyright can severely restrict public access to official government material.

Open access to government documents, especially those relating to the law, is important in a democracy. Restriction on the scope of Crown copyright has been strongly advocated in Australia for some time. In 1981, the (then) Chief Justice of New South Wales, Sir Laurence Street, emphasised the importance of open access to legal materials in a democracy:

'In a free and democratic society the law and all its documentation, both statutory and interpretive, that is to say both in Acts of Parliament and in judgements, must be public juris - available to all to be studied, to be used and to be quoted as a matter of public entitlement.' (Reg v Greciun-King (1 October 1981 unreported) noted (1982) 56 ALJ 326, 327).

His Honour reiterated these sentiments in a speech, remarking that 'the spectre of political censorship lurks not far behind assertions of copyright in judgements'. [8]

2.2 Statutory licence to make 'reprographic reproductions' of some legal sources

Public access to certain official legal documents was facilitated in Australia by the insertion of section 182A into the Copyright Act 1968 (Cth) in 1980 in response to recommendations made in the 1976 Report of the Copyright Law Committee on Reprographic Reproduction (the 'Franki report'). Section 182A allows one copy 'by reprographic reproduction' of a 'prescribed work' to be made. The following are 'prescribed works':

  • a Commonwealth or State Act, an enactment of the legislature of a Territory, and delegated legislation;
  • a judgement, order or award of a Federal court or of a court of a State or Territory;
  • a judgement, order or award of a tribunal (not being a court) established by or under an Act or other enactment of the Commonwealth, a State or a Territory;
  • reasons for a decision of a court or tribunal.

The copy may be made 'by or on behalf of a person for a particular purpose'. What that 'particular purpose' might be is not explained. The words do not seem to limit the purpose of the copying in any way, however the copying is limited to 'reprographic' reproduction which means 'a facsimile copy ... of any size or form' (s. 10(3)(g)) and so precludes reproduction of the works in digital form. The scope of s 182A, and specifically the meaning of 'facsimile copy', has recently been considered by the Federal Court.

2.3 Baillieu and Poggioli v Australian Electoral Commission and the Commonwealth (the postal votes case)

The case concerned an application form for a postal vote. There is a prescribed form under the Commonwealth Electoral Act 1918 (Cth). The Liberal Party of Australia had, for some years, produced and distributed its own application forms for postal votes. Completed applications were returned to the Party, and then forwarded to the Electoral Commission. The Commission also produced a brochure which included the prescribed form, and information for applicants and witnesses which paraphrased the relevant provisions in the Electoral Act. The Commission's brochure explained the application procedure and the circumstances in which a voter might qualify for a postal vote - for instance illness or imprisonment. The Liberal Party incorporated into its brochure the gazetted form and the paraphrased information produced by the Commission from the Act. The Liberal Party's form included additional material such as the Party logo and address as the return address. The Party's form also included some illustrations which Justice Sundberg took great delight in describing, even though the copyright status of the art work was not in issue. The form featured, his Honour explains, some electors (neither ill nor imprisoned) who were 'apparently excited' at the prospect of posting their vote, and a post box which was demonstrating some peculiar and anthropomorphic characteristics - smiling, eyes twinkling, eyebrows arched and swaying. It, too, was excited by the occasion!

While his Honour had some fun with the Party's art work, the Electoral Commission's objections to the forms centred upon the practice of electors returning them to the Party. This practice had occurred for some time, and the Commission had processed the forms during previous elections without resistance. In February 1993, the Commission had acknowledged its long standing view 'that substantial compliance with the official form was acceptable'. However the policy changed, and in a submission to the Commonwealth Joint Standing on Electoral Matters which inquired into the conduct of the 1993 Commonwealth election, the Commission sought amendments to the Electoral Act to prevent the general reproduction and distribution of application forms, or at least to ensure that completed forms were returned directly to Commission officers. The Committee made recommendations to that effect, however they were not implemented.

Without legislative change, the Commission sought to rely upon Crown copyright to prevent political parties from reproducing the forms. This is not the first case in Australia where Crown copyright has been relied upon to serve some purpose other than those normally associated with the rights of an author. In the 1980 High Court case Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, the Commonwealth succeeded in suppressing the publication of 'leaked' foreign affairs and defence documents when the law of confidential information could not be relied upon. The Court held that the public interest in open discussion of public affairs outweighed the Government's interest in protecting confidentiality, nevertheless Crown copyright could be used to suppress the documents. [9] Despite attempts by the Liberal party in Baillieu and Poggioli, and the publishers in the Fairfax case, to argue that the real issues in these cases concerned government policy rather than copyright protection, the courts have insisted upon treating the Crown 'in the same way as any other copyright owner' (Baillieu (1996) at 509). It is important to emphasise the illegitimate uses that government may make of copyright, when considering whether the Crown ought to be entitled to the same extensive rights as authors and other producers.

As the Baillieu case concerned reproduction of the Commission's paraphrasing of the legislation, it is of no particular interest in a discussion concerning Crown copyright in primary legal material - that is in the legislation itself. The Liberal Party did not dispute that the Commonwealth owned copyright in the gazetted application form or the Commission's brochure. However, Justice Sundberg's consideration of some of the Party's (unsuccessful) defences to copyright infringement is interesting. Ultimately, the Party succeeded in the case because the Commonwealth was estopped from enforcing its copyright. An estoppel arose from earlier undertakings to accept and process applications lodged on forms in the Liberal Party's brochures. In addition to estoppel, the Party argued that the Commonwealth's copyright was not infringed because the parts of the Commission's brochure reproduced were not sufficiently original to be protected. The Commission's brochure, it was claimed, simply paraphrased parts of the Commonwealth Electoral Act 1918 (Cth). His Honour held, however, that the author of the Commission's brochure 'has not simply copied or paraphrased the statutory material, but has imposed some greater coherence or order upon it' (Baillieu (1996) at 506). In employing a more 'user friendly' language, the author had created a sufficiently original work to attract copyright protection vested in the Crown. This Crown ownership of copyright in administrative interpretations and explanations of legislation has important implications in any debate concerning a limited waiver or abolition of copyright in specified materials such as legislation. In its 1992 report, the Prices Surveillance Authority (PSA) recommended abolition of copyright in legislation and all related documents such as administrative interpretations [10]. The yet to be implemented abolition of New Zealand Crown copyright in legislation, judgements and other specified sources does not extend to such administrative interpretations or simplifications of the law. These materials produced by the Executive may also play an important role in public access to legal information, and should be made freely available.

As mentioned above, the Federal Court also considered the statutory licence under s. 182A of the Copyright Act 1968 (Cth). The 'prescribed works' covered by section 182A include instruments made under an Act: in this case the application form gazetted under the Electoral Act. The Party had made multiple copies of the form. It had, it argued, made each copy 'for a particular person' under s. 182A - that is a person applying for a postal vote although their identity was not know at the time the copy was made. When recommending the introduction of this provision, the Franki Report (Copyright Law Committee, 1976; p. 59) had anticipated that it would 'enable an organisation to make copies for distribution to its members'. However, Sundberg J doubted in this case that the provision applied to the printing of 900,000 copies for unidentified persons. Ultimately, he was not required to decide the point because the brochures printed by the Party were not 'reprographic reproductions'. His Honour referred to a dictionary definition of the term 'facsimile' and held that it must be an 'exact copy'. This interpretation coincided with his Honour's understanding of the policy underlying the provision:

'Given that the section is concerned with statutes, regulations, rules and judgements in relation to reproduction of which precision is of the essence, it is not surprising that the freedom to reproduce prescribed works is restricted to the making of an exact copy'. (Baillieu (1996) at 504).

2.4 Use of Crown copyright to ensure accuracy of sources

When waiver or abolition of Crown copyright in official legal documents is advocated, the need to ensure the accuracy of copies is often raised. See, for instance, the arguments made by Robbie, G (1996) formerly of HMSO. Security and authenticity of data is also of major concern to authorities when public access databases of official documents are being developed.

It is not clear, however, why it is necessary for governments to monitor (usually by licensing [11]) publication of all versions of Acts and judgements, whether they be in electronic or print form. The relevant authority can always produce, or licence others to produce, an official version which is clearly marked as authoritative. Other laws, such as the tort of passing off and statutory equivalents, could be relied upon to ensure that unofficial versions do not claim this 'authoritative' status. Open access to official versions would still need to be assured if use of authorised sources is prescribed, for instance in the courts.

Such an approach would enable legal sources to enter the public domain. The public could choose to use authorised versions and databases which guarantee the security of their data. Other sources would have to be approached with great caution. But then, all information in print form without appropriate citations of authority, and a great deal of material on the Internet, should be treated with caution.

A middle road, which retains some control over authenticity, might be that recommended by Professor Picciotto (Picciotto S, 1996). Picciotto suggests a right should be reserved for the Crown to bring actions to prevent or sanction publication of inaccurate versions of official works which damage the integrity or authenticity of the source. He recommends either 'a restatement of the rationale of Crown prerogative, or an extension of the doctrine of moral rights'. As discussed above, the scope of Crown prerogatives is not easily determined, and so may prove difficult to restate. It can not be extended. [12] Introduction of a form of moral right may be a more straight forward approach. Such a right would not unduly restrict the free flow of accurate legal information. However it would, as with all infringements, rely upon detection of the breach and commencement of an action by government. Given the anarchic nature of the Internet, the best advice to users would still be - TAKE CARE! - and use a site you can trust.

The important issue of verification could also be dealt with in other ways, unrelated to intellectual property law. Control over the production and processing of administrative documents, such as the applications for postal votes in the Baillieu case, might be better achieved by specific provisions in the relevant Act. Full copyright rights, which include the right to refuse to license altogether, would seem to be excessive protection to grant to government if assurance of an authorised version is all that is required. This concern about ensuring authorised sources is, however, reflected in the preference for copyright waiver rather than a complete release of legal sources into the public domain.

2.5 Waiver of Crown Copyright

On 27 August 1993 a notice appeared in the New South Wales Government Gazette (No. 94 of 1993 p. 5115) which commenced as follows:

'Recognising that the Crown has copyright in the legislation of New South Wales and in certain other material, including but not limited to prerogative rights and privileges of the Crown in the nature of copyright, and that it is desirable in the interests of the people of New South Wales that access to such legislation should not be impeded except in limited special circumstances...'

The notice authorised any publisher to publish and otherwise deal with any New South Wales legislation, subject to certain conditions which included that the waiver could be varied or revoked at any time. Any publication of material under the waiver must also be 'accurately reproduced in proper context and to be of an appropriate standard', 'must not indicate directly or indirectly that it is an official version of the material' and the arms of the State may not be used without further authorisation. Reproduction in electronic form was not allowed for the first six months of the operation of the waiver, but was not restricted thereafter (subject to the conditions discussed above).

This waiver of copyright in legislation was followed in March 1995 by a waiver, in similar terms, of Crown copyright in decisions of the courts and tribunals of New South Wales (Government Gazette No. 23 of 1995 p. 1087). Again, the waiver authorised publishers to 'publish or otherwise deal with' judicial decisions, subject to the conditions relating to revocation and authenticity. It did not preclude publication in electronic form.

The other Australian States have not followed New South Wales' lead. However, the Liberal and National Parties' Coalition policies issued for the March 1996 election, included the following statement on waiver of Crown copyright in the Law and Justice Policy.

'The retention by the Government of Copyright in legislation and related documents imposes an unnecessary cost or barrier to ordinary Australians wishing to access the law. A Liberal and National Government will:

  • establish a Crown Copyright waiver scheme for legislation, transcripts and related documents so as to maximise access by all Australians and to reduce the cost.'

Curiously, the policy does not refer to judgements, unless that is what is meant by 'transcripts'. It would be strange if the decisions of courts were included under the 'catchall' of 'related documents'. Given that the rationale for the waiver is public access to the law, case law is an essential primary source which should be included. At the very least, 'related material' should include extrinsic material necessary for the interpretation of legislation as listed in s. 15AB of the Acts Interpretation Act 1901 (Cth). A broader range of material produced by the Executive which pertains to the administration of the law should also be considered. Now that the Coalition is in government, we await implementation of this policy.

2.6 Abolition of Crown Copyright

It is interesting to note that a 'waiver scheme' has been favoured by the Coalition, rather than abolition of Crown copyright in these materials as adopted (but not yet implemented) in the New Zealand Act, and as recommended by the 1992 report of the Australian Prices Surveillance Authority (PSA). In December 1992 the PSA inquired into the publications pricing policy of the Australian Government Publishing Service (AGPS). The AGPS publishes Commonwealth legislation, statutory rules, and a wide range of other government documents, and its Charter includes responsibility for administering and protecting Commonwealth Crown copyright.

The PSA recommended that 'Crown copyright in legislation and all related documents such as administrative interpretations be abolished' (Prices Surveillance Authority; 1992, p. 92) and made the following comments:

The Authority is committed to unhindered public access to any legislation passed by Parliament. Legislation establishes rights and obligations on citizens, who are entitled to full information. Access to legislation should include all documents necessary for the understanding of law and to enable citizens to pursue their rights and entitlements under the law. This includes Acts, Statutory Rules, Bills and Explanatory Memoranda, second reading speeches, and any administrative interpretations of law such as Insurance and Superannuating Circulars and Tax Rulings. There should be no restriction on the dissemination of such information.

There appears to be less justification for the existence of Crown copyright than copyright in general...

The information being copyrighted has been developed not by private individuals but by tax payers funded sources. Copyright monopoly rights are not necessary to ensure incentive for adequate developments of such information. It is information produced using public money to facilitate government. Such information should be freely available. (Prices Surveillance Authority; 1992, p. 91).

The PSA made no comments in relation to judicial decisions because the focus of its report was material published by the AGPS (which does not publish judgements). However the argument that citizens are entitled to access 'all documents necessary for the understanding of law' could be used equally for case law.

The PSA recommendations on this point have not been implemented. The issue has been raised again recently as one of the many matters to be considered in the major review being undertaken by the Copyright Law Review Committee.

2.7 Current CLRC Review

At the beginning of 1995 the (then) Commonwealth Minister for Justice, Duncan Kerr MP, announced a major review of copyright law in Australia. The Copyright Law Review Committee (CLRC) has been granted three years to conduct the review, and must finally report on or before 30 November 1997. Referred to as the Simplification and Review Reference, the aim of the review is, the Minister explained, to 'better equip the law to absorb technological change'. [13]

In February 1996, the Committee issued a paper entitled Copyright Reform: A Consideration of Rationales, Interests and Objectives 'to stimulate debate on the arguments made in support of the modern copyright regime'. The paper includes a table of propositions on which the Committee seeks comment from interested parties. Included amongst these propositions are the following questions on Crown copyright, raised for public consideration:

3. copyright does not, and should not, extend the same level of protection to all creations...

Is it appropriate to grant copyright protection to government owned material? If so, in what circumstances? Where legislation has given government agencies the power to acquire information, should those agencies be entitled to charge for the supply of that information? On a cost recovery basis? On any basis?...(p. 19-20)

4.6 copyright protection should not extend to material that should be in the public domain...

Should the public have free access to and use of all material necessary for a proper understanding of legal rights and duties (such as Acts, Statutory Rules, Bills, Explanatory Memoranda, and Second Reading Speeches)? Should Government-produced or commissioned material be protected by copyright? (p. 22)

Amongst the submissions made to the CLRC, and made public to date, the National Library of Australia has addressed the questions concerning Crown copyright. Perhaps unsurprisingly, the Library has recommended that Crown copyright be abolished. (National Library of Australia; 1996, rec 10.3.1). This recommendation is supported by the following reasoning:

'All Parliamentary materials, legislative material, and the vast bulk of other government information should be in the public domain for two reasons: first, that it has already been produced at public expense, and secondly that in an electronic environment the marginal cost of distribution of this information, unlike that for print, is tending towards zero.' (para. 10.1)

It will be interesting to see if any State or Commonwealth government submissions to the CLRC address this issue.

3. New Zealand

As many readers will no doubt be aware, a new Copyright Act came into force in New Zealand on 1 January 1995 (Copyright Act 1994 (NZ)). As mentioned above, the Act is based upon the Copyright Designs and Patents Act 1988 (UK) however it differs from the British legislation in some respects, one being Crown copyright.

Crown copyright is retained in the NZ Act and its period of protection is extended to 100 years from the end of the calendar year in which the work is made (s. 26 (3)(b)). Under the old Act, Crown copyright in works had lasted fifty years from making (whether published or unpublished).

Under section 26(1), the Crown is the first owner of copyright in a work when it:

'...is made by a person employed or engaged by the Crown under a contract of service, a contract of apprenticeship, or a contract for services'

This differs from the old Act which (as currently in Australia) granted the Crown copyright in works and other subject matter first published under the direction or control of the Crown. Like the 1988 UK Act, first publication of a work by government no longer attracts Crown copyright. However, New Zealand has not adopted the special provisions in the Copyright, Designs and Patents Act 1988 (UK) relating to Crown ownership of copyright in legislation and Parliamentary copyright. Instead, section 27 of the New Zealand Act has abolished Crown copyright in Bills, Acts and delegated legislation, judgements, Parliamentary debates and reports of Parliamentary select committees, Royal Commissions and other statutory inquiries ... at least it will once proclaimed to commence. Section 27 did not come into force with the rest of the Act on 1 January 1995. Commencement is dependent upon an Order in Council under subsection (2) which has not been made to date. [14]

Where does that leave the copyright status of New Zealand legislation? Somewhat uncertain in relation to statutory copyright and probably dependent upon the Crown's prerogative rights. [15] Legislation is made by parliament, not by a person employed or engaged by the Crown; or at it least ought to be! Although Parliamentary Counsel [16] draft proposed new legislation and amendments to existing legislation as required by the government or members of parliament, this is not necessarily the final form the legislation will take once it has passed through the legislature.

For Acts passed since commencement of the 1994 New Zealand Act, the Crown can no longer rely upon first publication to grant it copyright in legislation. It was this narrower formulation of Crown copyright excluding first publication which necessitated the new Parliamentary copyright and Crown copyright in legislation provisions in the UK. Without provisions such as those in the UK Act, can Crown ownership of statutory copyright in legislation be substantiated in New Zealand?

For legislation passed before the commencement of the Act, the transitional provisions in the First Schedule of the 1994 Act state:

20. The provisions of section 26 of this Act apply to a work made before commencement if -

a) Section 52 of the 1962 Act applied to the work immediately before commencement; and

b) The work is not one to which section 27 of the Act applies

Section 27 of the Act does not apply to anything at the moment, and so it would seem that copyright in legislation first published by the Crown before commencement of the 1994 Act which attracted protection under the 1962 Act remains. However it is interesting to note the arguments made by Olivia Mitchell, in her 1991 article, that the New Zealand Crown was unable to claim copyright in legislation on that basis after the Government Printing Office was privatised (Mitchell, O; 1991, pp. 355 - 356).

If the Crown does not own statutory copyright in legislation, does anyone else? The non-application of the Crown ownership provisions does not automatically put a literary work in the public domain. Assuming that the Act is an original literary work capable of being protected by copyright, [17] do the ordinary ownership rules apply? If so, who is the author of legislation? It has been argued that legislation has no author because it is an 'Act' of the sovereign. Long Innes CJ accepted that it 'is probably true in the legal sense', that an Act has no author, even though, in reality, it is a literary work and some person, or many persons, must have written the words. (Attorney-General for New South Wales v Butterworth & Co. (1937) 38 SR (NSW) 195, at 259.) See also Mitchell, O; 1991, p. 384

Despite these uncertainties, the Crown in New Zealand continues to assert its copyright in legislation as is clear from the notices displayed on the recently launched Web site LIINZ.

4. Australasian legal sources on the Internet

4.1 LIINZ

The Legal Information Institute of New Zealand (LIINZ) Internet site is maintained by University of Waikato School of Law. As mentioned above, the site was launched on 19 June 1996. LIINZ aims to provide free access to New Zealand primary legal materials such as legislation, bills and regulations together with secondary materials. Case law is not currently listed amongst the material proposed for the site (see 'Aims and Functions of 'LIINZ'').

It is very early days for the site. So far, the 1995 NZ Acts have been made available, together with a range of secondary material. The Acts have been provided to LIINZ in digital form by arrangement with Status Publishing Limited. As mentioned above, the New Zealand Government asserts ownership of copyright in New Zealand Statutes, and in its copyright disclaimer the University of Waikato acknowledges this copyright on behalf of LIINZ. The Acts are reproduced on the site under licence from the Crown.

4.2 AUSTLII

The Australasian Legal Information Institute (AustLII), which commenced operations on 1 January 1995, was established by the University of New South Wales and the University of Technology, Sydney. AustLII aims to provide free access to Australasian legal materials, both primary and secondary sources, in full text on the Internet. Legal and associated materials that are in the public domain, or for which only minimal licence fees are charged, are included. The AustLII team have been strong lobbyists for the public availability of law related information which has been produced by publicly funded bodies.

As the directors of AustLII have pointed out, Crown copyright is not the only barrier to the provision of legal sources on the Internet. It is free, or at no more than cost recovery, access to primary materials in digital form which makes sites such as AustLII and LIINZ feasible:

'unless governments and agencies positively co-operate with non-commercial bodies which wish to provide information via the Internet by providing them with raw data in computerised form, non-commercial bodies are unlikely ever to be able to publish the data in any form. It is therefore primarily a question of public policy, not a question of copyright.' (Greenleaf, G et al, 1995)

A strong emphasis upon Commonwealth and New South Wales materials on the site demonstrates the co-operation from official bodies in those jurisdictions. A significant amount of Commonwealth material has been made available to AustLII from the long established Commonwealth Government database 'SCALE'. A number of the other States are notable by their absence 18 months after the launch of the site! However, the negotiations continue. If the Coalition's policy on Crown copyright waiver is implemented, it will be interesting to see what form it takes. The apparent reluctance of some of the Australian States to relinquish Crown copyright in official legal sources might be resolved at a Federal level. [18] We await reform. However, access to legal sources in digital form will still require negotiation, and so a commitment to open access to official legal sources by all Australian governments is required.

References

Books

De Silva, L Morris, S and Morrison, V (April 1996 revision), Bulletin 76 - Government &Copyright (Sydney: Australian Copyright Council).
Evatt, H (1987), The Royal Prerogative (Sydney: Law Book Co).
Lahore, J (loose leaf service 1988), Intellectual Property in Australia; Copyright Law (Sydney: Butterworths)
Zines, L 'Commentary' in Evatt, H (1987), The Royal Prerogative (Sydney: Law Book Co).

Law Reform Reports, Papers and submissions

Copyright Law Committee (1976), Report on Reprographic Reproduction Mr Justice Franki Chairman, October 1976 (Canberra: AGPS).
Copyright Law Review Committee (1996), Copyright Reform: A Consideration of Rationales, Interests and Objectives. February 1996 (Canberra: Office of Legal Information and Publishing Attorney-General's Department).
National Library of Australia (1996), Submission to the Copyright Law Review Committee on Reference to Review and Simplify the Copyright Act 1968
Prices Surveillance Authority (1992), Inquiry into the Publications Pricing Policy of the Australian Government Publishing Service Report No. 47 19 December 1992 (Melbourne: PSA).
Senate Standing Committee on Legal and Constitutional Affairs (1993), The Cost of Justice: Second report; Checks and imbalances the role of Parliament and the Executive August 1993 (Canberra: Senate).

Journal articles

Bannister, J (1996), 'It ain't what you say it's the way that you say it. Could freedom of political expression operate as a defence to copyright infringement in Australia?' 14 Copy Reptr 22.
Greenleaf, G, Mowbray, A, King, G and van Dijk, P (1995), 'Public access to law via Internet: the Australasian Legal Information Institute', Journal of Law & Information Science, Vol 6 Issue 1. <http://austlii.law.uts.edu.au/austlii/libs_paper.html>
Mitchell, O (1991), 'Crown copyright in legislation' 21 VUWLR 351.
Monotti, A (1992), 'Nature and Basis of Crown Copyright in Official Publications' [1992] 9 EIPR 305.
Oppenheim, C (1996), 'Crown Copyright and HMSO', 2 The Journal of Information, Law and Technology (JILT). <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_2/special/oppenheim/>
Picciotto, S (1996), 'Towards Open Access to British Official Documents', 2 The Journal of Information, Law and Technology (JILT). <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_2/picciotto/>
Robbie, G (1996), 'Crown Copyright - Bête Noire or White Knight?', 2 The Journal of Information Law and Technology (JILT). <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_2/special/robbie/>

Cases

Attorney-General for New South Wales v Butterworth & Co. (1937) 38 SR (NSW) 195.
Baillieu and Poggioli v Australian Electoral Commission and the Commonwealth (1996) 33 IPR 494.
Blackpool Corporation v Locker [1948] 1 KB 349.
British Broadcasting Corp v Johns [1965] 1 Ch 32.
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39.
Iannella v French (1968) 119 CLR 84.
Reg v Greciun-King (1 October 1981 unreported) noted in (1982) 56 ALJ 326, 327.

Statutes

Acts Interpretation Act 1901 (Cth)
Commonwealth Electoral Act 1918 (Cth)
Copyright Act 1968 (Cth)
Copyright Act 1994 (NZ)
Copyright, Designs and Patents Act 1988 (UK)

Footnotes

[1] Although patently untrue, it is an irrebuttable presumption of law rather than a presumption of fact - Windeyer J Iannella v French (1968) 119 CLR 84, 113.

[2] Subject to any agreement to the contrary - s.179.

[3] See also s. 178 in relation to Crown copyright in films and sound recordings.

[4] Crown copyright in sound recordings and films (s. 181), engravings and photographs (s. 180 (3)) lasts for 50 years from first publication, while for other artistic works in which the Crown owns copyright the period is fifty years from the time the work was made (s. 180 (2)).

[5] The general protection period in Australia for works is life of the author plus fifty years.

[6] See, for instance, the discussion of 'Reform Issues' in De Silva et al (1996) pp 47 - 48.

[7] See note [4]

[8] Speech on the Opening of the Law Term Dinner at Sydney on 2 February 1982 reported in (1982) 56 ALJ 326, 327.

[9] For a discussion of the case and the implied freedom of political expression in Australian constitutional law see Bannister, J (1996).

[10] See section 2.6 - Abolition of Crown Copyright.

[11] The Commonwealth Government, through the Australian Government Publishing Service (AGPS), grants 'standing' or 'blanket' licences to law publishers upon application, which authorise them to publish Commonwealth Acts, Statutory Rules, Bills and explanatory memorandum. The system of 'standing licences' was introduced in 1982 see (Lahore, J; 1988, para 4.12.90) and continues to date. Where Commonwealth typeset material is reproduced by facsimile or optical character reader a charge is made. (Prices Surveillance Authority; 1992, p. 9).

[12] '...it is 350 years and a civil war too late for the Queen's courts to broaden the prerogative. The limits within which the executive government may impose obligations or restraints upon citizens of the United Kingdom without any statutory authority are now well settled and incapable of extension' Diplock LJ British Broadcasting Corp v Johns [1965] 1 Ch 32, 79.

[13] Media Release 3 February 1995 The Hon. Duncan Kerr MP, Minister for Justice.

[14] Information stated in this paper is up to date as at 31 July 1996.

[15] Section 225 retains existing rights and privileges of the Crown. Given that the Crown prerogative may not truly be referred to as a 'copyright', section 27 should perhaps read: no copyright, including any prerogative right or privilege of the Crown in the nature of a copyright, exists in the following works...

[16] Section 2(1) defines:

'Crown'-

(a) Means Her Majesty the Queen in right of New Zealand; and

(b) Includes a Minister of the Crown, a government department, and an Office of Parliament;...

'Office of Parliament' means-

...

(d) The Parliamentary Counsel Office

[17] Originality of some legislation in New Zealand, and indeed other Commonwealth countries, which copies substantial parts of UK legislation may be problematic see (Mitchell, O; 1991, p. 354).

[18] Sections 51(xviii) and 51(xxxi) of the Australian Constitution would need to be considered in relation to the Commonwealth's power to abolish, or compulsorily acquire on just terms, the prerogative rights of the States. See (Zines, L; 1987, C16).

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