Report to the Government 2.

0
Taskforce: Project 4
Copyright Law an
!nte""ect#a" Property
$nne %it&gera"
Professor of Law Research' ()T
*y"ie Pappa"aro
Research $ssistant' +choo" of Law' ()T
,ecem-er 200.
This work is "icense #ner a Creative Commons $ttri-#tion
2./ $#stra"ia Licence
http://creatvecommons.org/censes/by/2.5/au/
$--reviations an $cronyms............................................../
+cope of Project 4: Copyright an !nte""ect#a" Property.......0
12ec#tive +#mmary...........................................................3
Recommendaton 1 Copyrght aw and management practces
shoud gve effect to the governments estabshed pocy on open
access to and reuse of PSI....................................................................8
Recommendaton 2 Exercse government (Crown) copyrght to gve
effect to the governments pocy on open access to and reuse of PSI.8
Recommendaton 3- Government ownershp of copyrght shoud not
be reed on to |ustfy other restrctons on access to and reuse of PSI.8
Recommendaton 4 - Copyrght aw and management practces shoud
factate compex fows of nformaton wthn the pubc sector,
between the pubc sector and non-government partes; and between
non-government partes.......................................................................9
Recommendaton 5 Adopt copyrght management practces
approprate to the web 2.0 envronment .........................................10
Recommendaton 6 Use smpe, standardsed, automated cences
coverng use and reuse of PSI.............................................................10
Recommendaton 7 Support and gudance for agences usng open
content (pubc) cences.....................................................................10
Recommendaton 8 Incude gudance on copyrght aw and practce
n dgtsaton strateges.....................................................................11
Recommendaton 9 Carfy the meanng of "pubcaton" n ss 33 and
34 to gve certanty to the duraton of copyrght and avod
mpractcaty and set statutory mts to copyrght protecton for
unpubshed works..............................................................................11
Recommendaton 10 Deveop gudance on "speca cases" and uses
permtted under s 200AB ...................................................................12
Recommendaton 11 Ensure access to ega advce and gudance
about copyrght aw and practce.......................................................12
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C57+!+T17T >!T< P5L!C; 57 $CC1++ T5 $7, R1)+1 5% P+!
......................................................................................44
Government copyrght ownershp.......................................................14
Rghts of governments as copyrght owners.......................................14
Ratonae for government copyrght ownershp..................................16
Exercse of excusve rghts by governments......................................19
Reevance of PSI access and reuse pocy to exercse of copyrght by
government........................................................................................ 21
Recommendaton 1 Copyrght aw and management practces
shoud gve effect to the governments estabshed pocy on open
access to and reuse of PSI..................................................................22
Recommendaton 2 Exercse government (Crown) copyrght to gve
effect to the governments pocy on open access to and reuse of PSI
........................................................................................................... 23
Recommendaton 3- Government ownershp of copyrght shoud not
be reed on to |ustfy other restrctons on access to and reuse of PSI
........................................................................................................... 23
2. 17+)R1 C5P;R!G<T L$> $7, 8$7$G1817T PR$CT!C1+
%$C!L!T$T1 T<1 C58PL1: %L5> 5% !7%5R8$T!57 >!T<!7
G561R7817T $7, T5 T<1 PR!6$T1 +1CT5R.....................24
2
Identfyng and removng ega mpedments to nformaton fows ....24
Pubc admnstraton exceptons and operaton of statutory cences
........................................................................................................... 25
Lcence og|ams mpede nformaton fows and reuse........................29
Fexbe censng favoured over a no-copyrght approach..................30
Waver of copyrght n egsaton and |udgments...............................34
Use of standardzed open content censng by Austraan government
agences............................................................................................. 36
Creatve Commons (CC) cences........................................................37
Creatve Commons and Government..................................................38
Oueensand: Government Informaton Lcensng Framework (GILF) Pro|ect
.................................................................................................................. 38
Austraan Government..............................................................................42
Advsng users about permtted uses of matera ..............................46
Recommendaton 4 - Copyrght aw and management practces shoud
factate compex fows of nformaton wthn the pubc sector,
between the pubc sector and non-government partes; and between
non-government partes.....................................................................48
Recommendaton 5 Adopt copyrght management practces
approprate to the web 2.0 envronment .........................................49
Recommendaton 6 Use smpe, standardsed, automated cences
coverng use and reuse of PSI.............................................................49
Recommendaton 7 Support and gudance for agences usng open
content (pubc) cences.....................................................................49
?. R18561 C5P;R!G<T =$RR!1R+ T5 $RC<!6$L $7,
C)LT)R$L 8$T1R!$L+...................................................../4
Gudance on copyrght aw and practce n dgtzaton strateges......51
"Unpubshed" materas, "perpetua" copyrght and orphan works. .51
Meanng of "pubsh".................................................................................52
Overcomng the probem of "perpetua" copyrght ...................................53
Soutons n other |ursdctons...................................................................56
"Speca cases" of permtted fexbe deang the demma of s
200AB................................................................................................. 59
Recommendaton 8 Incude gudance on copyrght aw and practce
n dgtsaton strateges.....................................................................63
Recommendaton 9 Carfy the meanng of "pubcaton" n ss 33 and
34 to gve certanty to the duraton of copyrght and avod
mpractcaty and set statutory mts to copyrght protecton for
unpubshed works..............................................................................63
Recommendaton 10 Deveop gudance on "speca cases" and uses
permtted under s 200AB ...................................................................64
4. $CC1++ T5 !7%5R8$T!57 $=5)T C5P;R!G<T L$> $7,
PR$CT!C1 .......................................................................@/
Recommendaton 11 Ensure access to ega advce and gudance
about copyrght aw and practce.......................................................67
$PP17,!: $....................................................................@.
$PP17,!: =....................................................................00
$ppeni2 C......................................................................3@
$ppeni2 ,......................................................................0
=i-"iography....................................................................2
3
4
$--reviations an $cronyms
5
ABC Austraan Broadcastng Corporaton
ABS Austraan Bureau of Statstcs
AWRIS Austraan Water Resources Informaton
System
BoM Bureau of Meteoroogy
BY Attrbuton (under Creatve Commons
cences)
CAL Copyrght Agency Lmted
CC Creatve Commons
CCA Commonweath Copyrght Admnstraton
CCau Creatve Commons Austraa
CDPA Copyrght, Desgns and Patents Act 1988
(UK)
CLRC Copyrght Law Revew Commttee
Cth Commonweath
CUPI The Commerca Use of Pubc Informaton
report (2006)
EDIC Economc Deveopment and Infrastructure
Commttee
ERMI Eectronc rghts management nformaton
EU European Unon
GA Geoscence Austraa
GILF Government Informaton Lcensng
Framework
GLAM Sector Gaeres, Lbrares, Archves, Museums
HMSO Her Ma|estys Statonery Offce
IP Inteectua Property
|ISC UK |ont Informaton Systems Commttee
LACA Lbrares and Archves Copyrght Aance
MODIS Moderate Resouton Imagng
Spectroradometer
NC Non Commerca
ND No Dervatves
NGISS Natona Government Informaton Sharng
Strategy
NZ New Zeaand
NZGOAL New Zeaand Open Access and Lcensng
Framework
OECD Organsaton for Economc Cooperaton and
Deveopment
OSDM Offce of Spata Data Management
PSA Prces Surveance Authorty
PSI Pubc Sector Informaton
OSIC Oueensand Spata Informaton Counc
SA Share Ake
TPM Technoogca protecton measures
TRIPS Agreement on Trade-Reated Aspects of
Inteectua Property Rghts
UK Unted Kngdom
UNECE Unted Natons Economc Commsson for
Europe
6
+cope of Project 4: Copyright an !nte""ect#a"
Property
Ths report s the prmary output of Pro|ect 4: Copyrght and Inteectua
Property, the am of whch was to produce a report consderng how
greater access to and use of government nformaton coud be acheved
wthn the scope of the current copyrght aw.
In our submsson for Pro|ect 4, we undertook to address:
the pocy ratonaes underyng copyrght and how they appy n the
context of materas owned, hed and used by government;
the recommendatons of the Copyrght Law Revew Commttee
(CLRC) n ts 2005 report on Crown copyrght;
the egsatve and reguatory barrers to nformaton sharng n key
domans, ncudng where ega mpedments such as copyrght have
been reed upon (whether rghty or wrongy) to |ustfy a refusa to
provde access to government data;
copyrght censng modes approprate to government materas
and exampes of censng ntatves n Austraa and other reevant
|ursdctons; and
ssues specfc to the gaeres, brares, archves and museums
("GLAM") sector, ncudng management of copyrght n egacy
materas and "orphan" works.
In addressng these areas, we anaysed the submssons receved n
response to the Government 2.0 Taskforce Issues Paper, consuted wth
members of the Task Force as we as severa key stakehoders (see
$ppeni2 ,) and consdered the comments posted on the Task Forces
bog.
Ths Pro|ect Report sets out our fndngs on the above ssues. It puts
forward recommendatons for consderaton by the Government 2.0 Task
Force on steps that can be taken to ensure that copyrght and nteectua
property promote access to and use of government nformaton.
Professor Anne Ftzgerad
Brsbane
17 December 2009
7
12ec#tive +#mmary
4. C57+!+T17C; >!T< $CC1++ $7, R1)+1
P5L!C;
Recommenation 4 A Copyright "aw an management
practices sho#" give effect to the government9s
esta-"ishe po"icy on open access to an re#se of P+!
Copyright "aw' an the management of copyright in P+! materia"s'
sho#" -e consistent with an s#pport the
Bgovernment9sCepartment9sD po"icy position on open access to'
an #se an re#se of P+!.
Copyright "aw an management sho#" not impee the #se of
information containe in copyright P+! materia"s' where that
information sho#" -e avai"a-"e for access an re#se #ner the
Bgovernment9sCepartment9sD open access po"icy.
Recommenation 2 A 12ercise government ECrownF copyright
to give effect to the government9s po"icy on open
access to an re#se of P+!
5wnership of copyright in P+! materia"s gives the government an
e2tensive set of e2c"#sive rights to contro" copying' p#-"ication'
e"ectronic istri-#tion' aaptation' etc. These e2c"#sive rights
sho#" -e e2ercise to give effect to the open access po"icy'
rather than riving Eor eterminingF po"icy an practice.
Recommenation ?G Government ownership of copyright
sho#" not -e re"ie on to j#stify other restrictions on
access to an re#se of P+!
5wnership of copyright in P+! materia"s Epartic#"ar"y the e2c"#sive
rights to contro" copying' p#-"ication an e"ectronic istri-#tionF
sho#" not -e re"ie on -y government to restrain access to or
#se of work for other p#rposes' s#ch as protecting the privacy or
confientia"ity of information containe in a copyright oc#ment
or concerns a-o#t the H#a"ity an integrity of the information. To
ens#re transparency' any restrictions on access an re#se sho#"
-e j#stifie on re"evant "ega" gro#ns Eeg privacy' confientia"ityF
or information management consierations Eeg H#a"ity an
integrity of P+!F.
8
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!7%5R8$T!57 >!T<!7 G561R7817T $7, T5
T<1 PR!6$T1 +1CT5R
Recommenation 4 G Copyright "aw an management
practices sho#" faci"itate comp"e2 f"ows of information
within the p#-"ic sector' -etween the p#-"ic sector an
nonGgovernment partiesI an -etween nonGgovernment
parties
!entify the ifferent kins of copyright P+! materia"s Ein terms of
how they are create an -y whomF an #nerstan how P+!
f"ows within the p#-"ic sector' -etween the p#-"ic sector an nonG
government parties an among nonGgovernment parties.
Review the operation of copyright "aw an management practices
to ens#re P+! can f"ow as seam"ess"y as possi-"e' consistent with
the Bgovernment9sCepartment9sD open access po"icy.
!n partic#"ar' ens#re that copyright "aw an practice oes not
impeeCrestrict the f"ow of materia"s s#ch as:
vo"#nteer comm#nity contri-#tions to government
cons#"tations' mash#ps' -"ogs' etcI
works free"y istri-#te Eon"ineF or in har copy -y
government agenciesI
informationa" works pro#ce -y nonGgovernment parties
an provie to government #ner stat#tory reH#irements
Efor e2amp"e reports on environmenta" reaings' water
f"ows an C52 emissionsFI
informationa" works pro#ce -y nonGgovernment parties'
s#-siiary to activities carrie o#t p#rs#ant to the grant of
rightsC"icence -y government Efor e2amp"e' sche#"es of
programs pro#ce -y ho"ers of -roacasting "icencesF.
Thir party materia"s s#-mitte to government for aministrative
p#rposes Efor e2amp"e' #ner stat#tory reH#irementsF G
partic#"ar"y where entere into a p#-"ic register G sho#" -e a-"e
to -e copie -y government an other thir parties' s#-ject to
any restrictions that might -e impose #ner p#-"ic recors
"egis"ation' privacy' other "egis"ation' contracts s#ch as
commercia" in confience o-"igations Es#-ject to margina" cost
recovery' an a pres#mption that open "icensing wo#" app"yF.
Review the operation of the stat#tory "icence in s 43? to ens#re
that it oes not have #nintene conseH#ences Eeg inc"#ing
copyright science atasets pro#ce an provie to government
9
#ner internationa" arrangements which reH#ire ata to -e free"y
an open"y accessi-"e for re#se in the scientific comm#nityF.
Recommenation / A $opt copyright management practices
appropriate to the we- 2.0 environment
$s P+! is increasing"y mae avai"a-"e on"ine in igita" form Eeg
thro#gh we-sites where fi"es in stanar formats can -e
own"oaeF' "icensing practices sho#" -e appropriate to how
P+! is accesse' #se an re#se in the we- 2.0 Ean -eyonF
environment.
+tatements of #sers9 rights sho#" -e c"ear"y provie Ea"ong with
metaataF on or in association with inivi#a" igita" o-jects
Efi"esF so that #sers are a-"e' in most circ#mstances' to #se an
re#se P+! witho#t having to specifica""y reH#est permission to
#seCre#se.
+tatements on government we-sites where P+! is mae avai"a-"e
sho#" c"ear"y state #sers9 rights Erather than simp"y asserting
copyright' stating what cannot -e one an reH#iring #sers to
seek permission for many #sesF an' as far as possi-"e' -e
consistent with "icensing permissions on inivi#a" igita" o-jects
Efi"esF.
Recommenation @ A )se simp"e' stanarise' a#tomate
"icences covering #se an re#se of P+!
Government agencies sho#" manage their copyright P+! to
ena-"e access' #se an re#se -y aopting simp"e' stanarise'
#nmeiate' a#tomate "icences which provie c"ear statements
of #sers9 permissions.
To ens#re "icense P+! can -e re#se' the "icences #se sho#" -e
compati-"e with simi"ar "icences #se -y other p#-"ic an private
sector parties.
Recommenation 0 A +#pport an g#iance for agencies
#sing open content Ep#-"icF "icences
The #se of open content Ep#-"icF "icences' s#ch as the Creative
Commons "icences' has -een recommene in n#mero#s reviews
of P+! access an re#se in $#stra"ia EVenturous Australia' 7G!++'
1,!C' $>R!+F an overseas E7J' )*F an severa" %eera"' +tate
an "oca" government agencies have anno#nce an intention to'
or have -eg#n' imp"ementing Creative Commons "icences on their
P+!.
$ co""a-orative engagement sho#" -e entere into with Creative
Commons $#stra"ia to: eve"op know"ege' an provie
10
information to government agencies' a-o#t the operation of the
"icencesI provie fee-ack a-o#t e2perience of $#stra"ian
government agencies in app"ying the "icences to P+!I provie
inp#t into f#t#re revisions of Creative Commons "icences to
ens#re their appropriateness for P+!I participate in isc#ssions
with Creative Commons nationa" organisations in other co#ntries
where the "icences are -eing #se for P+!I an f#rther eve"op
techno"ogies an systems to ena-"e a#tomation of "icensing.
?. R18561 C5P;R!G<T =$RR!1R+ T5 $RC<!6$L
$7, C)LT)R$L 8$T1R!$L+
Recommenation 3 A !nc"#e g#iance on copyright "aw an
practice in igitisation strategies
+trategies for igitisation of thir party materia"s he" -y
archives' m#se#ms' ga""eries an "i-raries sho#" inc"#e
g#iance on management of "ega" rights' to ens#re igitise
materia"s can -e mae avai"a-"e for access' #se an re#se witho#t
inc#rring "ia-i"ity or #n#e e2pense.
Recommenation . A C"arify the meaning of Kp#-"icationL in
ss ?? an ?4 to give certainty to the #ration of
copyright an avoi impractica"ity an set stat#tory
"imits to copyright protection for #np#-"ishe works
Provie g#iance on the meaning of Kp#-"icationL in ss ?? an ?4
of the Copyright Act, to assist archives' "i-raries an c#"t#ra"
instit#tions in etermining the #ration of copyright protection
for the materia"s they ho". !n "ight of recent j#icia"
consieration of the meaning of Kp#-"icationL in Copyright
Agency Ltd v New South Wales B2000D %C$%C 30 c"arification of
the provisions of the Copyright Act 4.@3 is reH#ire.
M#icia" statements in CAL v NSW s#pport an interpretation of
Kp#-"icationL that inc"#es eposit of materia"s into archives'
"i-raries etc -y persons with a#thority to ea" with the materia"'
s#ch that the materia" is avai"a-"e for access -y mem-ers of the
p#-"ic' witho#t restrictions Eeg for reasons of nationa" sec#rity'
privacy or confientia"ityF that "imit p#-"ic access.
!f a -roaer interpretation of Kp#-"ishL is s#pporte' for some
materia"s that have not -een p#-"ishe -efore the a#thor9s eath'
Kp#-"icationL may occ#r on eposit into an archive' "i-rary' etc
an copyright wo#" r#n from that point in time Ess ??E?F' E/F' ?4'
430' 434F. This interpretation may reH#ire review an
c"arification of sections of the Copyright Act which have -een
rafte on the -asis of a m#ch more restrictive meaning of
Kp#-"icationL.
11
The ma2im#m #ration of copyright protection sho#" -e efine
for materia"s which have not -een first p#-"ishe' p#-"ic"y
performe' etc #ring the "ife of the a#thor' so that copyright
oes not r#n on inefinite"y' potentia""y for an e2ceptiona""y "ong
term. The Copyright Act 4.@3 sho#" -e amene to make it
c"ear that copyright cannot en#re perpet#a""y in #np#-"ishe
works. $ moe" for stat#tory "imits to #np#-"ishe works is
provie -y the provisions in the )nite *ingom9s Copyright,
Designs and Patents Act 4.33 an the 7ew Jea"an Copyright Act
4..4' for -oth e2isting an new works.
Recommenation 40 A ,eve"op g#iance on Kspecia" casesL
an #ses permitte #ner s 200$=
+ection 200$= was enacte to provie archives' m#se#ms'
ga""eries an "i-raries Esometimes referre to as the KGL$8L
sectorF' as we"" as the e#cation an isa-i"ity services sectors'
with room to operate' -eyon the scope of e2isting e2ceptions.
<owever' there is ins#fficient certainty a-o#t the meaning of
Kspecia" caseL an the operation of s 200$= for c#"t#ra" an
co""ecting instit#tions to re"y on it' "arge"y efeating the p#rpose
of inc"#ing the f"e2i-"e ea"ing e2emption in the Copyright Act
4.@3. !t is not possi-"e to e2ha#stive"y efine Kspecia" caseL in s
200$= or to "ist the kins of #ses that wi"" constit#te a Kspecia"
caseL. G#iance on the operation of s 200$= is reH#ire for
c#"t#ra" an co""ecting instit#tions' inc"#ing ientification of
categories of #se that fa"" within the concept of a Kspecia" caseL.
1sta-"ish projects' in co""a-oration with archives' m#se#ms'
ga""eries an "i-raries' to eve"op practica" g#iance on how to
ientify thir party copyright materia"s that can -e #se witho#t
infringing copyright -eca#se they fa"" within the Kspecia" caseL
e2emption in s 200$=.
4. $CC1++ T5 !7%5R8$T!57 $=5)T C5P;R!G<T
L$> $7, PR$CT!C1
Recommenation 44 A 1ns#re access to "ega" avice an
g#iance a-o#t copyright "aw an practice
To ens#re that copyright P+! can -e manage to give effect to the
Bgovernment9sCepartment9sD po"icy on access an re#se'
government agencies reH#ire access to "ega" avice an practica"
g#iance on the imp"ementation of systems an proce#res
Einc"#ing "icensing practices an techno"ogiesF to ena-"e access
to an re#se of P+! Epartic#"ar"y in the on"ine' we- 2.0
environmentF.
12
Provie f#ning to eve"op the capacities of p#-"ic sector
organisations to ea" with copyright "aw an management of P+!'
inc"#ing eve"oping practica" copyright an "icensing too"kits
Eesktop app"ications where possi-"eF.
13
4. G561R7817T9+ 1:1RC!+1 5% C5P;R!G<T
+<5)L, =1 C57+!+T17T >!T< P5L!C; 57
$CC1++ T5 $7, R1)+1 5% P+!
Under Austraan aw, copyrght protects much of the creatve, cutura,
educatona, scentfc and nformatona matera generated by
government departments and agences at the federa, State/Terrtory and
oca eves. Governments need to dea wth ther copyrght nterests n
ths vast range of materas n a manner consstent wth ther poces on
nformaton access and reuse.
Government copyright ownership
Ownershp of copyrght by government agences s deat wth n Part VII of
the Copyright Act 1968 (the "Crown copyrght" provsons).
1
The prncpa
provsons on whch government copyrght s based are ss 176 179 of the
Copyright Act 1968. Sectons 176 and 178 provde that the government
owns copyrght n terary, dramatc, musca and artstc works, sound
recordngs and fms "made by, or under the drecton or contro of the
Commonweath or a State". Secton 177 further provdes that the
government owns copyrght n a terary, dramatc, musca or artstc work
that s frst pubshed n Austraa "by, or under the drecton or contro of,
the Commonweath or a State".
2
The operaton of ss 176- 178 can be
dspaced by an agreement between the government and the person who
created the copyrght matera that copyrght s to beong to that person or
some other party specfed n the agreement.
3

The meanng of the phrase "by, or under the drecton or contro of, |the
Crown|" was consdered by the Fu Federa Court n Copyright Agency
Limited v State of New South Wales |2007| FCAFC 80, whch made t cear
that governments w own copyrght not ony n works produced by ther
empoyees or agents but aso works made by other partes under the
drecton or contro of the government.
4
Governments therefore own
copyrght n a vast range of materas n hard copy and dgta form,
ncudng egsaton, |udgments, paramentary materas, reports of
government-commssoned revew bodes, art works, computer programs,
dgta databases, photos and audovsua works.
5

Rights of governments as copyright owners
1
See generay, Anne Ftzgerad and Neae Hooper, "Crown Copyrght" n Bran Ftzgerad
and Ben Atknson (eds) (forthcomng, Sydney Unversty Press, 2010).
2
Sectons 176-178 are sub|ect to any agreement between the Crown and the maker of the
work or sub|ect matter under whch t s agreed that copyrght s to beong to the author or
maker or some other specfed person (s 179).
3
Copyright Act 1968, s 179
4
Copyright Agency Limited v State of New South Wales |2007| FCAFC 80, paras 122 125
(Emmett |, wth Lndgren and Fnkesten || agreeng; see aso Fnkesten | at paras 182-
187).
5
For a stng of the varous knds of copyrght materas produced by or for governments,
see Copyrght Law Revew Commttee, Crown Copyright, 2005 at pp 10-11.
14
As the Copyright Act 1968 does not generay dfferentate between the
rghts of government as copyrght owner and the rghts of prvate partes
who own copyrght, governments en|oy the same range of excusve rghts
n ther copyrght materas as prvate sector copyrght owners.
6
One of the
few ponts of dfference between the rghts of government and prvate
sector copyrght owners s that the duraton of copyrght for materas
wthn the scope of ss 176 178 s 50 years from the end of the caendar
year n whch the copyrght tem s frst pubshed or s made.
7

The prmary rghts of copyrght are the rghts to:
reproduce;
pubsh;
pubcy perform;
make an adaptaton; and
communcate the copyrght work to the pubc n eectronc form
(eg on a webste or as a dgta fe).
8
Other rghts of copyrght owners are the rghts to ensure that eectronc
rghts management nformaton (ERMI) s not removed or atered and to
prevent the crcumventon of technoogca protecton measures (TPM)
they appy to ther copyrght materas to contro access to or copyng of t.
ERMI s eectronc nformaton (ncudng numbers or codes representng
such nformaton) whch s ether attached to or emboded n the copyrght
matera, or appears n connecton wth a communcaton or the makng
avaabe of the copyrght matera.
9
It typcay ncudes nformaton
dentfyng the copyrght work, ts author or copyrght owner or ndcatng
the terms and condtons on whch the matera can be used, or that the
use of the matera s sub|ect to terms or condtons of use. It s an
nfrngement of the copyrght owners rghts to remove or ater ERMI
reatng to a copyrght work or other sub|ect matter wthout the permsson
of the copyrght owner or excusve censee, f the person dong the act
knows or ought reasonaby to have known that the remova or ateraton
woud nduce, enabe, factate or concea an nfrngement of copyrght.
10
In certan crcumstances the remova or aterng ERMI reatng to a
copyrght work may be a crmna offence under the Copyright Act.
11
The
ant-crcumventon provsons enabe copyrght owners to protect ther
materas by appyng technca measures that contro access to or copyng
of the work. It s an nfrngement to knowngy dea n devces desgned to
crcumvent TPMs
12
and, where the TPM contros access to a copyrght
work, t s an nfrngement to knowngy crcumvent the TPM.
13
6
Secton 182 specfcay states that, apart from the provsons n Part VII of the Copyright
Act 1968 (n ss 176-181) reatng to the subsstence, duraton and ownershp of copyrght,
the provsons of Part III and Part IV of the Act appy.
7
Copyright Act 1968, ss 180, 181
8
Copyright Act 1968, ss 31, 85-88
9
The man provsons deang wth ERMI are set out n Dvson 2A, Subdvson B of the
Copyright Act 1968. Secton 116D sets out the ega remedes (ncudng an n|uncton or
damages) avaabe for the remova of and nterference wth ERMI.
10
Copyright Act 1968, ss 116B-116D.
11
Copyright Act 1968, ss 132AO-132AS.
12
Copyright Act 1968, s 116AO(1)
13
Copyright Act 1968, s 116AN(1)
15
As we as the rghts descrbed above, ndvdua authors of copyrght
works can exercse mora rghts, whch are persona to the author and
cannot be transferred. Athough government does not, tsef, have mora
rghts, t may own copyrght n materas n respect of whch ndvdua
authors can contnue to exercse ther mora rghts. Ths stuaton may
arse where government obtans an assgnment of copyrght n materas
that have been produced by an ndvdua author who has not agreed to
wave the exercse of ther mora rghts. As mora rghts cannot be
assgned, f the author has not agreed to wave them, they w contnue to
be exercsabe by the author. The mora rghts that can be exercsed by
ndvdua authors are the rghts:
of attrbuton, that s to be attrbuted (accredted) as the author
of the work, where reasonabe;
to ob|ect to fase attrbuton, that s to prevent someone ese
beng wrongy dentfed as the author of the work; and
of ntegrty, that s to prevent derogatory treatment of the work
that woud pre|udce the authors reputaton.
14
Rationa"e for government copyright ownership
Whe government en|oys essentay the same excusve economc rghts
as other copyrght owners, t woud be wrong to assume that the ratonae
for and orgns of copyrght n government materas are the same as for
materas produced by ndvduas and prvate sector organsatons. An
obvous pont of dfference s that, snce many government materas (eg
reports, egsaton, handbooks) are created n the ordnary course of
actvtes by parament, the courts and government agences, the
tradtona |ustfcaton of copyrght as provdng an ncentve to produce
and dssemnate new nformaton s much ess reevant than for works
produced by pubshers wth the expectaton of a commerca return.
15
As
observed by the Copyrght Law Revew (CLRC) n ts Crown Copyright
report (2005), works such as egsaton and |udgments "w be produced
regardess of fnanca ncentves, and therefore the tradtona |ustfcaton
for copyrght ownershp does not appy". Smary the Prces Surveance
Authorty n ts report, Inquiry into the Pulications Pricing Policy of the
Australian !overnment Pulishing Service (1992), observed that the
tradtona ratonae behnd copyrght aw does not appy to matera
produced by the government tsef:
There appears to be ess |ustfcaton for the exstence of Crown copyrght
than copyrght n genera... The nformaton beng copyrghted has been
deveoped not by prvate ndvduas but by tax payer funded sources.
Copyrght monopoy rghts are not necessary to ensure ncentve for
adequate deveopments of such nformaton. It s nformaton produced
usng pubc money to factate government. Such nformaton shoud be
freey avaabe.
16

14
Copyright Act 1968, Part IX, ss 189-195AZR.
15
Copyrght Law Revew Commttee (CLRC), Crown Copyright, 2005, para 4.23 at p38,
avaabe at
http://www.crc.gov.au/www/agd/agd.nsf/Page/RWPBB79ED8E4858F514CA2573510082755
9 (accessed 9 November 2009).
16
Prces Surveance Authorty, Inquiry into the Pulications Pricing Policy of the Australian
!overnment Pulishing Service, Report No. 47, 19 December 1992, at p 91.
16
Athough the rghts exercsabe by governments as copyrght owners
under the provsons of the Copyright Act 1968 are for most purposes
dentca to those of prvate partes, there are dfferences between the
government and prvate copyrght that contnue to be reevant n the
current envronment. Government (or Crown) copyrght has ts orgns n
the Crown prerogatve.
17
The scope of the Crown prerogatves n genera
s uncertan, and they may change over tme. It s generay accepted that
the prerogatves are not ost by dsuse but must be expressy removed by
statute.
18
The Crown prerogatve n the nature of copyrght arose from the Crowns
roe n "ensur|ng| the ntegrty and authentcty of offca government
pubcatons".
19
As Monott expans, from the ate 18
th
century:
a consstent theme emerged, namey that the soveregn has a duty, based
on the grounds of pubc utty and necessty, to superntend and ensure
authentc and accurate pubcaton of matters of natona and pubc
concern reatng to the government, state and the Church of Engand. That
duty carres wth t a correspondng prerogatve whch s not specfcay
defned n any of the cases, but ceary extends to pubshng and prntng
that matera.
20

Ths understandng of the prerogatve accords wth the |udgment of the
Supreme Court of New South Waes n Attorney"!eneral #NSW) v
$utterworth % Co #Australia& Ltd
21
, where Long Innes C| stated that the
Crown prerogatve stems from the hstorc duty of the monarch "to
superntend the pubcaton of acts of the egsature and acts of state of
that descrpton, carryng wth t a correspondng prerogatve".
22
Over the
years, the scope of the prerogatve was cut back, such that, as expaned
n Copyright Agency Limited v State of New South Wales
23
:
|b|y 1911 the Crown ony camed the excusve rght to pubsh the
foowng works: the authorsed verson of the Bbe ('he (niversities of
)*ford and Camridge v +ichardson (1802) 6 Ves 689; (1802) 31 ER
1260); Acts of Parament ($as,et v Camridge (niversity (1758) 1 W B
105; (1758) 96 ER 59); procamatons (!rierson v -ac,son (1794) Rdg. L. &
S. 304); aw books (+oper v Streater (1672) Skn 234; dscussed n (1672)
90 ER 107); .illar v 'aylor (1769) 4 Burr 2303; (1769) 98 ER 201);
amanacs (!urney v Longman (1806) 13 Ves 493; (1806) 33 ER 379); and
what were compendousy descrbed as government pubcatons.
17
For dscusson of the Crown prerogatve, see CLRC, Crown Copyright, 2005, Chapter 6.
See aso | Gchrst, Crown Copyright/ An Analysis of rights vesting in the Crown under
statute and common law and their interrelationship, LLM thess, Monash Unversty, 1983;
H V Evatt, 'he +oyal Prerogative, Law Book Co, 1987 (pubcaton of H V Evatts doctora
thess, Certain aspects of the +oyal Prerogative/ a study in constitutional law, 1924).
18
See CLRC, Crown Copyright, Chapter 6, at pp 90-91.
19
CLRC, Crown Copyright, 2005, para 4.66 at p 53.
20
See A Monott, Nature and $asis of Crown Copyright in )fficial Pulications |1992| 9 EIPR
305, at pp 306-307. Note though that, n Austraa, the Crown prerogatve was never
consdered to appy to regous works, as there s no estabshed state regon: CLRC,
Crown Copyright, 2005 at para 6.07, p 88.
21
(1937) 38 SR (NSW) 195.
22
Ibd at 229.
23
|2007| FCAFC 80 per Fnkesten | at para 179.
17
The Crown prerogatve s preserved under s 8A of the Copyright Act 1968
24
and ts operaton s not affected by other provsons of the Act. The
contnuance of the prerogatve means that the nature of government
copyrght dffers n some mportant respects from copyrght nterests hed
by prvate partes. Takng nto account the orgns of the Crown
prerogatve wth respect to offca documents, t s not surprsng that a
domnant theme runnng through the commentary on Crown copyrght n
Austraa and other |ursdctons s that centra to the reasonng about the
contnued recognton of government copyrght s the "need to ensure the
ntegrty and authentcty of offca government pubcatons".
25
Academc
commentators
26
and many submssons to the CLRCs revew of Crown
copyrght supported the vew that the ntegrty and authentcty of
government copyrght materas can be ensured by dstrbuton under
copyrght censng condtons whch enabe nfrngement actons to be
brought for msuse or msrepresentaton of the matera.
27
For exampe,
the Vctoran Governments submsson stated that:
|t|he State must ensure the contnued ntegrty and authentcty of offca
government pubcatons so that the pubc can be aware of the status of
each pubcaton. Contnung to mantan Crown copyrght s essenta to
achevng |ths| outcome.
28
The |ustfcaton for Crown copyrght as provdng a safeguard for the
"ntegrty and authentcty" of offca works has consstenty been rased
n the Unted Kngdom (even f no further rghts exsted n such works).
29
In 1996, Gordon Robbe (then) Head of Copyrght n Her Ma|estys
Statonery Offce (HMSO), expaned:
|C|opyrght s .a means by whch copyrght hoders can ensure that ther
matera s used propery and responsby by thrd partes. Ths s of
partcuar mportance where that matera s authortatve, and where the
genera pubc, n one way or the other, are pacng reance on ts veracty
and accuracy. The Copyrght Unt |of HMSO| does come across cases of
abuse and s abe to pursue and prevent them.
30
24
Secton 8A was nserted nto the Act by the Copyright Amendment Act 1980. Prevousy,
Crown prerogatve was preserved by s 8(2) of the Copyright Act 1968.
25
See Copyrght Law Revew Commttee, Crown Copyright, 2005 para 4.66 at p 53,
avaabe at
http://www.crc.gov.au/www/agd/agd.nsf/Page/RWPBB79ED8E4858F514CA2573510082755
9
26
See | Gchrst, 'he role of government as proprietor and disseminator of information,
(1996) vo. 7, no. 1, Austraan |ourna of Corporate Law pp 62-79, at p 79. On ths pont,
see aso | Bannster, )pen Access to Legal Sources in Australasia/ Current 0eate on
Crown Copyright and the Case of the Anthropomorphic Posto* (1996) 3 |ourna of
Informaton, Law and Technoogy (|ILT), avaabe at
http://www2.warwck.ac.uk/fac/soc/aw/e|/|t/1996_3/bannster/ (accessed 9 November
2009). Bannster s commentng on $aillieu and Poggioli #of and on ehalf of the Lieral
Party of Australia, 1ictorian 0ivision& v Australian 2lectoral Commission and
Commonwealth of Australia |1996| FCA 1202.
27
See CLRC, Crown Copyright, 2005, footnote 93, para 4.66 at p 53
28
See CLRC, Crown Copyright, 2005, para 4.68, at p 53, referrng to Submsson 64 at p 1.
29

See S Pccotto,3'owards )pen Access to $ritish )fficial 0ocuments3, 1996 (2) |ourna of
Informaton Law and Technoogy (|ILT), avaabe at
http://www2.warwck.ac.uk/fac/soc/aw/e|/|t/1996_2/pccotto/ (accessed 9 November
2009).
30
G Robbe, Crown Copyrght - Bte Nore or Whte Knght?, 1996 (2) 'he -ournal of
Information Law and 'echnology #-IL'&, avaabe at
http://www2.warwck.ac.uk/fac/soc/aw/e|/|t/1996_2/speca/robbe/ (accessed 9 November
18
The 1999 UK Whte Paper, 'he future management of Crown copyright,
referred, wthout expanaton, to the need to "preserve the ntegrty and
offca status of government matera".
31
It noted that there was a genera
percepton among the pubc that Crown copyrght "operates as a brand or
ktemark of quaty ndcatng the status and authorty of much of the
matera produced by government".
32
The |ustfcaton of government
copyrght "as a means of retanng quaty contro over PSI and the way t
s used" was rased more recenty n the Unted Kngdom Offce of Far
Tradngs 2006 report, 'he Commercial (se of Pulic Information (CUPI),
whch found that mproved avaabty of pubc sector nformaton for
commerca reuse was not ncompatbe wth the contnued recognton of
Crown copyrght.
33
The CUPI report made recommendatons on mprovng
the commerca use of PSI wthout aboshng Crown copyrght and stated
that:
||n fact, the exstence of Crown copyrght s a key part of the contro
mechansms whch we want to bud on to ensure that |pubc sector
nformaton hoders| act n a far and transparent manner.
34
A smar approach to the |ustfcaton for government copyrght was taken
n a study commssoned from KPMG by the Canadan Government n
2001. The report recommended that dgta geospata data shoud be
censed to users at no cost for use and redstrbuton, and that copyrght
and censng shoud contnue to be used to protect the quaty of
geospata data orgnatng from government agences, rather than to
prevent use.
35
12ercise of e2c"#sive rights -y governments
|ust as the ratonae for government copyrght ownershp dffers from that
for prvate sector copyrght, t s cear that t was ntended that
government rghts woud be exercsed prmary to ensure the dstrbuton
of authortatve government pubcatons. When the frst statutory Crown
copyrght provsons were enacted n the Unted Kngdom and Austraa, t
was stated that the Crowns rghts woud be exercsed to permt the "fu
2009).
31
Unted Kngdom government, Mnster for the Cabnet Offce, 'he future management of
Crown copyright, Cm 4300, HMSO, 1999 at para 5.1. See aso C Tuo, Crown copyright/ the
way forward 4 access to pulic sector information, The Law Lbraran, Vo. 29, No. 4, 1998,
200-3, at p200.
32
Ibd, para 5.1
33
Unted Kngdom government, Offce of Far Tradng, 'he Commercial (se of Pulic
Information, December 2006, at para 4.74, avaabe at
http://www.oft.gov.uk/advce_and_resources/pubcatons/reports/consumer-
protecton/oft861 (accessed 9 November 2009)
34
Ibd at para 4.76
35
KPMG Consutng, Executve Summary: !eospatial 0ata Policy Study " Pro5ect +eport,
2001, recommendaton 5 at p 25, avaabe at
http://www.geoconnectons.org/programsCommttees/proCom_pocy/keyDocs/KPMG/KPMG_
E.pdf (accessed 9 November 2009). An earer report produced for Industry Canada n
1995 by the Informaton Hghway Advsory Counc, 'he challenge of the information
highway had recommended the retenton of Crown copyrght. See aso A A Keyes and C
Brunet, Copyright in Canada/ Proposals for a +evision of the Law, Department of Consumer
and Corporate Affars, Ottawa, 1977, at p 225.
19
and free reproducton" and wdespread dssemnaton of the great buk of
government copyrght materas.
36

A Unted Kngdom Treasury Mnute of 1912
37
descrbed the practce to be
foowed to gve effect to s 18 of the Unted Kngdom Copyright Act 1911.
38
The 1911 Copyright Act (UK) was adopted n Austraa n 1912 (No 20 of
1912) and s 18 of that Act (the precursor to the current Crown copyrght
provsons n ss 176179 of the Copyright Act) provded that:
Wthout pre|udce to any rghts or prveges of the Crown, where any work
has, whether before or after the commencement of ths Act, been prepared
or pubshed by or under the drecton or contro of Hs Ma|esty or any
Government department, the copyrght n the work sha, sub|ect to any
agreement wth the author, beong to Hs Ma|esty, and n such case sha
contnue for a perod of ffty years from the date of the frst pubcaton of
the work. |emphass added|
An earer Treasury Mnute presented to the House of Commons on 31
August 1887
39
had dentfed seven casses of government pubcatons n
whch the Crown camed copyrght: (1) reports of seect commttees of
Parament and of Roya Commssons; (2) papers requred by statute to be
ad before Parament; (3) papers ad before Parament by command; (4)
Acts of Parament; (5) offca books; (6) terary and quas-terary works;
and (7) charts and ordnance maps. As noted by Fnkesten | n Copyright
Agency Limited v New South Wales |2007| FCAFC 80 (at para 177):
Accordng to the Mnute, Crown copyrght woud not be enforced n the frst
fve casses but copyrght n the ast two woud be strcty enforced. The
Mnute s reproduced n L.C.F. Odfed, The Law of Copyrght (1912) at
111-113.
Pubcatons n the frst fve categores descrbed n the Mnute, such as
reports of Seect Commttees or Roya Commssons and Acts of
Parament, were regarded as havng been produced for the "use and
nformaton of the pubc and t |was| desrabe that the knowedge of ther
contents shoud be dffused as wdey as possbe". A "genera rue
permttng fu and free reproducton" of such works was to appy and,
whe the rghts of the Crown woud contnue, no steps woud ordnary be
taken to enforce the Crowns copyrght. For works fang nto the atter
two categores "often produced |by government| at consderabe cost"
40
the government ob|ected to ther reproducton, "by prvate enterprse for
the beneft of ndvdua pubshers"
41
and made t cear that unauthorsed
36
See B Atknson, 'he 'rue 6istory of Copyright/ 'he Australian 2*perience 789: 4 ;99:,
Sydney Unversty Press, 2007 at p 277; B Ftzgerad, A Ftzgerad et a, Internet and 2"
Commerce Law/ 'echnology, Law, and Policy, Lawbook Co/Thomson, Sydney, 2007 at pp
267-268
37
Dated 28 |une 1912
38
1 & 2 Geo 5, Ch 46
39
No 335 of 1887. Ths earer Treasury Mnute was referred to n the 1912 Treasury Mnute.
40
See G Robbe, Crown Copyright " $<te Noire or White =night>, (1996) ; |ourna of
Informaton Law and Technoogy (|ILT)
http://www2.warwck.ac.uk/fac/soc/aw/e|/|t/1996_2/speca/robbe (accessed 9 November
2009).
41
Ibd.
20
reproducton woud ncur abty as f "the copyrght had been n prvate
hands".
42
In December 1913, a copy of the 1912 UK Treasury Mnute was brought to
the notce of the Commonweath Government by the Secretary of State for
the Coones, to provde nformaton on UK practce regardng Crown
copyrght. In |anuary 1914, Robert Garran, Secretary of the
Commonweath Attorney-Generas Department, wrote to the Secretary of
the Prme Mnsters Department, attachng a Mnute on Crown Copyrght
and requestng that the Prme Mnster communcate wth the respectve
State Premers on the sub|ect. Copes of the Unted Kngdom Treasury
Mnute of 1912 were crcuated by the Prme Mnster to the States,
attached to a etter dated 27 |anuary 1914, nformng them that the
Commonweath Government ntended to foow the practce adopted n the
Unted Kngdom.
From the hstorca background to the Crown copyrght provsons whch
survve to the current day n much the same form as n 1912 t s cear
that they were enacted wth the expectaton that they woud rarey be
exercsed to restran reproducton and copyng of government materas.
Athough there s no cear statement of the crcumstances n whch
governments may rey on ther excusve rghts to restran the
unauthorsed reproducton and dstrbuton of ther copyrght materas,
such nstances woud be mted.
However, apprecaton of the fact that Crown copyrght s ntended to
encourage rather than deter the dstrbuton and reuse of government
materas seems to have dmnshed over the years. The UKs Power of
Informaton Taskforce found that Crown copyrght was often
msunderstood by creators and reusers of data:
When the pubc sector pubshes nformaton peope shoud understand
that t s ntended for re-use. . Crown copyrght, despte ts hstorc name,
s desgned to encourage re-use n the ma|orty of cases.
43
Consequenty, the Power of Information 'as,force +eport (February 2009)
recommended that steps shoud be taken to mprove understandng of the
permssve aspects of Crown copyrght.
44

Re"evance of P+! access an re#se po"icy to e2ercise of
copyright -y government
In the absence of provsons n the Copyright Act 1968 that mt (or
provde gudance on) the exercse of copyrght by government, regard
must be had to the cear ntenton behnd the ntroducton of the
provsons, as we as to estabshed government poces reatng to use of
42
Ibd. Robbe quotes from a Treasury notce pubshed n the London Gazette of 23
November 1886: "Prnters and Pubshers are remnded that anyone reprntng wthout due
authorty matter whch has appeared n any Government pubcaton renders hmsef abe
to the same penates as those he mght under ke crcumstances have ncurred had the
copyrght been n prvate hands."
43
Ibd at p25.
44
R Aan, Power of Information 'as,force +eport, February 2009, recommendaton 12 at p
7, avaabe at http://pot.cabnetoffce.gov.uk/pot/category/fna-ntroducton/.
21
pubc sector materas. The fact that governments are abe, by vrtue of
ther excusve rghts as copyrght owners, to restrct access to, and
copyng and dstrbuton of, copyrght materas does not mean that they
shoud do so wthout cear |ustfcaton and authorty.
45
Copyrght s not, n
tsef, the drver of pocy and practce n reaton to copyng, dstrbuton
and use of government PSI materas.
The Organsaton for Economc Cooperaton and Deveopments (OECD)
+ecommendation for 2nhanced Access and .ore 2ffective (se of Pulic
Sector Information ("the OECD PSI Recommendaton")
46
acknowedges
that whe nteectua property rghts n PSI shoud be respected,
governments shoud exercse ther copyrght n ways that factate ts
reuse. Whe there are crcumstances where copyrght materas requred
by the pubc are deveoped by government wth pubc funds and t s
necessary to recoup costs, the decson to mpose charges for use of the
materas shoud be made n accordance wth the prcng/chargng
prncpe of the open access pocy.
47
Government ownershp of copyrght
does not, n tsef, |ustfy enterng nto a commerca arrangement to
obtan a fnanca return f dong so woud restrct the free and wdespread
dstrbuton of government materas. Further, copyrght shoud not, as a
genera practce, be reed upon by governments for secondary purposes
not drecty reated to the exercse of Crown copyrght (such as to restrct
access to government documents whch contan confdenta or otherwse
senstve nformaton).
48

Recommenation 4 A Copyright "aw an management
practices sho#" give effect to the government9s
esta-"ishe po"icy on open access to an re#se of P+!
Copyright "aw' an the management of copyright in P+!
materia"s' sho#" -e consistent with an s#pport the
Bgovernment9sCepartment9sD po"icy position on open access
to' an #se an re#se of P+!.
45
Note that n carryng out ts nqury nto Crown copyrght, the Copyrght Law Revew
Commttees Terms of Reference requred t to consder "the extent and approprateness of
reance by government on copyrght to contro access to and/or use of, nformaton": CLRC,
Crown Copyright, 2005 at p x
46
OECD, +ecommendation of the Council for 2nhanced Access and .ore 2ffective (se of
Pulic Sector Information, C(2008)36, OECD, Pars, 2008, avaabe at C(2008)36, avaabe
at http://www.oecd.org/dataoecd/0/27/40826024.pdf.
47
For exampe, there may be crcumstances where ony the government possesses the
expertse or resources requred to produce a copyrght work whch s not requred for
purposes of pubc admnstraton but s requred by the genera pubc. Uness the
government s abe to recoup the costs nvoved n producng the work t may not have the
ncentve or authorty to expend pubc mones to do so.
48
See CLRC, Crown Copyright, 2005 at p 39. Note that n Commonwealth v ?airfa* (1980)
147 CLR 39, the Hgh Court of Austraa (Mason |) granted an nterm n|uncton to restran
the pubcaton of certan documents produced by the Department of Defence and the
Department of Foregn Affars on the bass that pubcaton woud nfrnge copyrght.
However, the case has been crtcsed as a "poor exercse of government copyrght.
because t was essentay used for an uteror purpose, that of preservng the
confdentaty of documents. In the governmenta sphere ths s more appropratey deat
wth by specfc aws deang wth dscosure..: | Gchrst, 'he role of government as
proprietor and disseminator of information, (1996) vo. 7, no. 1, Austraan |ourna of
Corporate Law pp 62-79, at p 62.
22
Copyright "aw an management sho#" not impee the #se
of information containe in copyright P+! materia"s' where
that information sho#" -e avai"a-"e for access an re#se
#ner the Bgovernment9sCepartment9sD open access po"icy.
Recommenation 2 A 12ercise government ECrownF
copyright to give effect to the government9s po"icy on
open access to an re#se of P+!
5wnership of copyright in P+! materia"s gives the
government an e2tensive set of e2c"#sive rights to contro"
copying' p#-"ication' e"ectronic istri-#tion' aaptation'
etc. These e2c"#sive rights sho#" -e e2ercise to give
effect to the open access po"icy' rather than riving Eor
eterminingF po"icy an practice.
Recommenation ?G Government ownership of
copyright sho#" not -e re"ie on to j#stify other
restrictions on access to an re#se of P+!
5wnership of copyright in P+! materia"s Epartic#"ar"y the
e2c"#sive rights to contro" copying' p#-"ication an
e"ectronic istri-#tionF sho#" not -e re"ie on -y
government to restrain access to or #se of work for other
p#rposes' s#ch as protecting the privacy or confientia"ity
of information containe in a copyright oc#ment or
concerns a-o#t the H#a"ity an integrity of the information.
To ens#re transparency' any restrictions on access an
re#se sho#" -e j#stifie on re"evant "ega" gro#ns Eeg
privacy' confientia"ityF or information management
consierations Eeg H#a"ity an integrity of P+!F.
23
2. 17+)R1 C5P;R!G<T L$> $7,
8$7$G1817T PR$CT!C1+ %$C!L!T$T1 T<1
C58PL1: %L5> 5% !7%5R8$T!57 >!T<!7
G561R7817T $7, T5 T<1 PR!6$T1
+1CT5R
Any mode for managng copyrght PSI materas must be based on an
understandng of how PSI s produced and how t fows, both wthn
government and between government and the prvate sector. In a recent
report for the UK |ont Informaton Systems Commttee (|ISC), Case
Studies .apping the ?lows of Content, 1alue and +ights across the Pulic
Sector, Dr Prodromos Tsavos dentfed dfferent modes of content fows
and permssons across a range of pubc sector agences and observed:
The coser we get to a mode of unrestrcted sharng and repurposng of
content, the greater the need for attrbuton, quaty assurance, source
tracng and provenance.
49
!entifying an removing "ega" impeiments to information
f"ows
If the fow of PSI s to be mproved t s essenta to understand the knd of
materas produced, how they have been created, and by whom. As these
ssues a bear upon the exstence, ownershp and exercse of copyrght,
they w need to be addressed n any strategy for managng copyrght PSI
materas to enabe PSI to fow among government agences and between
government and the prvate sector.
Governments at a eves deveop, manage and dstrbute an array of PSI
n the form of documents, reports, webstes, datasets and databases on
CD or DVD and fes that can be downoaded from a webste. PSI materas
come nto exstence by varous means. A arge amount of PSI matera s
created wthn government, through the efforts of government empoyees
and other persons who are not empoyed by government but produce
copyrght materas whe workng as vounteers (for exampe, nterns,
students on work experence pacements and members of emergency
servces teams
50
).
A sgnfcant amount of matera hed and used by government s produced
externay, for exampe, by persons who make submssons to nqures,
revews and onne consutatons, recpents of government fundng or
grants and partes who are obged to produce documents and odge them
wth government agences. Governments commony commsson
ndependent contractors to produce materas and enter nto
arrangements to fund work n unverstes and research nsttutes that
49
Prodromos Tsavos, Case Studies .apping the ?lows of Content, 1alue and +ights across
the Pulic Sector, |ont Informaton Systems Commttee (|ISC), March 2009, at p 6,
avaabe at http://www.|sc.ac.uk/meda/documents/pubcatons/scaprcasestudesv2.pdf.
50
For exampe, emergency servces vounteers typcay vasty outnumber departmenta
empoyees (by as much as a factor of 10) and produce rsk management pans, ncdent
reports, news updates and other copyrght materas.
24
resuts n output n the form of reports, academc pubcatons and data.
An mportant category of PSI s materas prepared by non-government
partes whch are odged wth government pursuant to a statutory or
reguatory drecton to provde nformaton or a report (for exampe,
envronmenta mpact assessments and nformaton about water use,
greenhouse gas emssons and resuts of mnera or petroeum exporaton
actvtes).
51

In deveopng systems to factate PSI access and reuse, t s necessary to
ensure that government-produced materas can fow to other government
agences as we as to non-government users. Materas provded to
government by prvate sector partes w need to be usabe not ony by
the government agency that commssoned them or wth whch they are
odged, but aso by other government bodes. The fow of PSI does not ony
nvove government-generated materas fowng to other government
agences and the prvate sector. Government w often need to be abe to
pass on materas produced by prvate sector partes (whether
commssoned or produced under statutory requrements) to other prvate
sector partes. The OECD PSI Recommendaton requres governments to
encourage "nsttutons and government agences that fund works from
outsde sources to fnd ways to make these works wdey accessbe to the
pubc".
P#-"ic aministration e2ceptions an operation of stat#tory
"icences
To ensure that PSI can fow as ntended, n accordance wth the
governments pocy on access and reuse, consderaton shoud be gven
to the approach taken n the Unted Kngdom and New Zeaand. The Crown
copyrght provsons n UK and NZ copyrght egsaton were reformed n
the Copyright, 0esigns and Patents Act 1988 (UK)
52
and the Copyright Act
1994 (NZ) respectvey. These Acts repeaed the earer Crown copyrght
provsons whch, ke ss 176-179 of the Copyright Act 1968 (Cth), vested
ownershp n the Crown of works produced or frst pubshed "by, or under
the drecton or contro" of the Crown.
53
These provsons were repaced
wth a scheme of provsons deang wth Crown ownershp of copyrght,
together wth statutory exceptons permttng use by government and
thrd partes of documents produced for purposes of pubc admnstraton
and government busness. The re-structurng of the Crown ownershp
provsons overcame the probem of the potentay overy broad reach of
51
There are numerous exampes of documents of ths knd, ncudng mnng and petroeum
exporaton reports, food studes, so surveys, traffc anayss reports, nose studes,
cutura hertage assessments, envronmenta mpact statements, cence appcatons (eg
for quor cences, certfed traders, etc).
52
The changes mpemented recommendatons of the Whtford Commttee on Copyrght,
(1977) Cmnd 6732, paras 592-600. The Commttee consdered that the term "drecton or
contro" was too broad and recommended that the Crowns poston be assmated to that
of any empoyer. Nevertheess, the phrase "made by or under the contro or drecton" of
ether House s retaned n the defnton of paramentary copyrght n s 165 of the
Copyright, 0esigns and Patent Act 1988.
53
Crown copyrght provsons n these terms frst appeared n the Copyright Act 1911 (UK)
and were expanded n the Copyright Act 1956 (UK). For comment on these Acts, see | A L
(Adran) Sterng, Crown Copyright in the (nited =ingdom and )ther Commonwealth
Countries, Montrea conference n Crown Copyrght n Cyberspace, May 1995, avaabe at
http://www.exum.umontrea.ca/conf/dac/en/sterng/sterng.htm (accessed 9 November
2009)
25
Crown copyrght under the od formua. However, n both the UK and NZ,
the narrowng of the range of materas n whch the Crown coud assert
copyrght was baanced by the enactment of "pubc admnstraton"
exceptons to ensure that PSI and copyrght materas provded to
government by thrd partes for admnstratve purposes coud contnue to
be used wthout nfrngng copyrght or requrng payment of
compensaton.
The pubc admnstraton requrements n the UK Copyright, 0esigns and
Patents Act 1988 (ss 45-50)
54
(and the correspondng provsons n the NZ
Copyright Act (ss 60-62, 66)
55
) make t cear that copyrght s not nfrnged
when copyrght materas produced by non-government partes s used, by
government or other partes, n the foowng crcumstances:
where the matera s used for purposes of paramentary or |udca
proceedngs, or for the proceedngs of roya commsson or
statutory nqury;
56
where factua nformaton contaned n materas that are open to
pubc nspecton (eg a statutory regster) s coped;
57
copyng or dstrbutng copes of matera that s open to pubc
nspecton (under a statutory requrement) to enabe t to be
nspected at a more convenent tme or pace;
58
copyng or dstrbutng copes of matera that s open to pubc
nspecton (under a statutory requrement) or s on a statutory
regster and contans nformaton about scentfc, technca,
commerca or economc nterest, when done for the purpose of
dssemnatng that nformaton;
59
copyng or suppyng copes to others of matera hed n pubc
records n the meanng of the varous Pubc Records Acts;
60
or
54
These provsons are set out n Appendx A to ths report.
55
These provsons are set out n Appendx A to ths report.
56
Copyright, 0esigns and Patents Act 1988, ss 45 and 46
57
Copyright, 0esigns and Patents Act 1988 (UK), s 47(1) provdes that "|w|here matera s
open to pubc nspecton pursuant to a statutory requrement or s on a statutory regster,
any copyrght n the matera as a terary work s not nfrnged by the copyng of so much
of the matera as contans factua nformaton of any descrpton, by or wth the authorty
of an approprate person, for a purpose whch does not nvove the ssung of copes to the
pubc".
58
Copyright, 0esigns and Patents Act 1988 (UK), s 47(2)provdes that "|w|here matera
whch s open to pubc nspecton pursuant to a statutory requrement, copyrght s not
nfrnged by the copyng or ssung to the pubc of copes of the matera, by or wth the
authorty of the approprate person, for the purpose of enabng the matera to be
nspected at a more convenent tme or pace or otherwse factatng the exercse of any
rght for the purpose of whch the requrement s mposed".
59
Copyright, 0esigns and Patents Act 1988 (UK), s 47(3) provdes that "where matera
whch s open to pubc nspecton pursuant to a statutory requrement, or whch s on a
statutory regster, contans nformaton about matters of genera scentfc, technca,
commerca or economc nterest, copyrght s not nfrnged by the copyng or ssung to the
pubc of copes of the matera, by or wth the authorty of the approprate person, for the
purpose of dssemnatng that nformaton".
60
Copyright, 0esigns and Patents Act 1988 (UK), s 49 provdes that matera comprsed n
pubc records wthn the meanng of the reevant Pubc Records Acts whch are open to
26
dong an act that s specfcay authorsed by an Act of Parament.
61
A further excepton appes to the government, carfyng what t can do
wth copyrght works provded to t by other partes n the course of
"pubc busness", that s, any actvty carred on by the government.
62
Where a terary, dramatc, musca or artstc work has n the course of
pubc busness been communcated to the government for any purpose,
by or wth the cence of the copyrght owner and a document or ob|ect
embodyng the work s hed by the government, the government may,
wthout nfrngng copyrght, copy the work and dstrbute copes of t to
the pubc, for the purpose for whch the work was communcated to t, or
any reated purpose whch coud reasonaby have been antcpated by the
copyrght owner.
63
There are varous exstng exceptons that permt copyng or use of
specfc categores of matera for pubc purposes, under the Copyright
Act 1968 and other Commonweath egsaton. Exampes ncude a
genera excepton that permts a snge copy
64
to be made of part or a of
a statutory nstrument or court |udgment;
65
the excuson of the Natona
Archves from abty for copyrght nfrngement through provdng or
authorsng access to archva records avaabe for pubc access;
66
and
the exempton of Commonweath government offcers admnsterng the
offshore petroeum regme from abty for copyrght nfrngement when
usng copyrght documents requred to be submtted by thrd partes under
the Petroleum #Sumerged Lands& Act 1967 (Cth).
67

However, such pubc admnstraton exceptons as are currenty
recognzed under Austraan aw do not extend as broady or appy as
generay as those recognzed under the UK or NZ copyrght egsaton.
pubc nspecton under the provsons of those Acts, "may be coped and a copy may be
supped to any person, by or wth the authorty of any offcer apponted under that Act,
wthout nfrngement of copyrght". See aso Schedue 2, Rghts n Performances: Permtted
Acts, s 10.
61
Copyright, 0esigns and Patents Act 1988 (UK), s 50 provdes that "where the dong of a
partcuar act s specfcay authorsed by an Act of Parament, whenever passed, then,
uness the Act provdes otherwse, the dong of that act does not nfrnge copyrght."
62
Copyright, 0esigns and Patents Act 1988 (UK), s 48(4)
63
Copyright, 0esigns and Patents Act 1988 (UK), s 48(1), (2).
64
The provson uses the term "reprographc reproducton", the meanng of whch s
expaned n Copyright Act 1968, s 10(3)(g).
65
Copyright Act 1968, s 182A. The excepton appes to a Acts, whether Commonweath or
State; enactments of the egsature of a Terrtory; nstruments (ncudng Ordnances, rues,
reguatons or by-aws) made under an Act or enactment; |udgments, orders or awards of a
Federa court, court of a State or Terrtory, or a Trbuna estabshed by or under an Act or
enactment; and reasons for a decson of a court or Trbuna, ncudng reasons gven by a
|ustce, |udge or other member of a court or Trbuna for a decson gven by hm or her
ether as the soe member or as one of the members of the court or Trbuna.
66
Archives Act 78@A (Cth), s 57
67
See Petroeum (Submerged Lands) Act 1967 (Cth), s 150K (nserted by Petroeum
(Submerged Lands) Legsaton Amendment Cat (No. 1) 2000 (Cth), Schedue 1), whch
provdes: The copyrght n a terary or artstc work contaned n an appcabe document s
not nfrnged by anythng done by, or wth the authorty of, the Desgnated Authorty or the
Commonweath Mnster for the purpose of the exercse of any of the powers of that
Authorty or Mnster under ths Part." The Expanatory Memorandum to the Petroeum
(Submerged Lands) Legsaton Amendment B 1999 states that "|t|ths secton s ntended
to put beyond doubt the fact that the Desgnated Authorty, or the Commonweath Mnster
has a non-excusve rght to copy those data".
27
There s support for the adopton of "pubc admnstraton" exceptons n
Austraa, to permt use of copyrght materas by government and prvate
partes n crcumstances where:
the copyrght work s open to pubc nspecton (under a statutory
requrement), s on a statutory regster or forms part of a pubc
record;
the acts are specfcay authorsed by egsaton enacted by the
Commonweath or a State/Terrtory parament;
the acts are done for purposes such as commssons of nqury
(ncudng roya commssons), mnstera and statutory nqures
and aw reform bodes; or
the work has been provded to the Crown by the copyrght owner
(or authorsed agent) n the course of pubc busness and the acts
are for the purpose for whch the work was provded or any reated
purpose whch coud reasonaby have been antcpated by the
copyrght owner.
68
Exceptons such as these woud enabe governments to effectvey carry
out ther pubc dutes and to ensure that thrd partes can use
admnstratve materas prepared by other non-government partes. To
ensure that any "pubc admnstraton" exceptons are effectve n
excudng the reevant acts from any abty whatsoever, t shoud be
expressy stated that exempted acts not ony do not nfrnge copyrght but
are not sub|ect to payment of equtabe remuneraton under the statutory
cences. It shoud be made cear that copyrght materas whch are wthn
the scope of pubc admnstraton exceptons are not to be ncuded n the
category of materas for whch remuneraton s payabe by other
government agences and educatona nsttutons under the s 183 and
educatona copyng statutory cences.
The queston of whether smar exceptons to the pubc admnstraton
exceptons found n the UK and NZ copyrght egsaton shoud be
ntroduced n Austraa was consdered ony gancngy by the Copyrght
Law Revew Commttee n ts Crown Copyright report (2005)
69
and was not
addressed n ts recommendatons. However, n addtona comments, one
member of the CLRC (|ohn Gchrst) stated that "there s a compeng
pubc nterest for a provson to be nserted n the Copyright Act, smar to
s 48 of the Unted Kngdom Copyright, 0esigns and Patents Act, to
expressy enabe Government to effectvey carry out ts pubc dutes."
70
The mportance of ensurng that the exercse of copyrght does not mpede
the abty to use copyrght PSI for pubc admnstraton purposes s
68
See the Copyrght Law Revew Commttees Crown Copyright report, 2005, at para 5.33,
p 72, referrng to submssons by the Oueensand Department of Natura Resources, Mnes
and Energy (submsson 65 at p11) and the Oueensand Government (submsson 71 at p
10), avaabe at
http://www.crc.gov.au/www/agd/agd.nsf/Page/RWPBB79ED8E4858F514CA2573510082755
9 (accessed 9 November 2009).
69
CLRC, Crown Copyright, 2005, at para 5.75, pp 83-84.
70
Ibd at p 187.
28
strengthened by nternatona comparsons. In the Unted States, much of
the matera provded to governments by prvate partes pursuant to
statutory requrements woud not attract copyrght protecton, ether
because t does not meet the hgher US orgnaty threshod or because of
the operaton of the merger doctrne (copyrght protecton does not appy
f there s essentay ony one way of expressng an dea). Further, where
matera s protected by copyrght, much use by government or prvate
partes woud be non-nfrngng and non-remunerabe because t woud fa
wthn the broad "far use" excepton.
Durng the Crown Copyright revew, the CLRC stated that t was
antcpated that there woud be a further revew, focusng on government
use (as opposed to ownershp) of copyrght materas n 2006.
Licence "ogjams impee information f"ows an re#se
To enabe PSI to effectvey fow to those who want to use t, the adopton
of smpe, cear and standardsed cences and the transparency of the
condtons on whch the PSI can be accessed and reused s of cruca
mportance. The compextes of PSI creaton and use mean that censng
s key to constran nformaton fows, uness the condtons of use are
stated n cear and easy understood terms. A sgnfcant mpedment to
the effcent sharng and reuse of PSI s the dversty of censng practces
and the ack of consstency or compatbty of the rghts granted to users.
Incompatbty of cence terms creates a ega og|am and presents a
ma|or obstace to the ready fow of PSI.
71

The use of numerous dfferent cences, often wth nconsstent or
ncompatbe terms of use, has been dentfed as a cause of probems n
varous revews. The Government Informaton Lcensng Framework (GILF)
pro|ect was nstgated by the Oueensand Spata Informaton Counc
(OSIC) n order to deveop strateges for overcomng the recurrng
probems encountered n accessng and sharng spata nformaton durng
and after natura dsasters
72
, due to fragmented, neffcent and confusng
arrangements for nformaton access and reuse.
73
For the Austraan
Bureau of Statstcs the recognton that, even after makng much of ts
data freey avaabe onne, the potenta remaned for ts censng
practces to form "an undesrabe barrer to those wshng to reuse
sgnfcant amounts of data" ed to the decson to go a step further and
adopt Creatve Commons censng for ts onne data.
74
Athough,
71
See aso M Heer, 'he !ridloc, 2conomy 4 6ow 'oo .uch )wnership Wrec,s .ar,ets,
Stops Innovation, and Cost Lives, 2008, Basc Books, New York.
72
In Oueensand, the probems of accessng and sharng spata nformaton were
hghghted by Cycone Larry whch devastated arge areas of northern Oueensand n 2005;
n Vctora, the 2009 bushfres pognanty demonstrated the crtcaty of rea tme,
spatay-reated nformaton to enabe effectve emergency response management.
73
Oueensand Government, Oueensand Spata Informaton Counc, !overnment
Information and )pen Content Licensing/ An access and use strategy (Government
Informaton Lcensng Framework Pro|ect Stage 2 Report), October 2006, avaabe at
http://www.qsc.qd.gov.au/qsc/OSIC.nsf/CPByUNID/BFDC06236FADB6814A25727B0013C7E
E. Note that author of the current report undertook research for and contrbuted to the
authorshp of the GILF Stage 2 report, aong wth Oueensand Government offcers
ncudng Dr |ohn Cook, Neae Hooper and Tm Barker.
74
Su-Mng Tam, Austraan Bureau of Statstcs, Informing the Nation 4 )pen Access to
Statistical Information in Australia, paper presented to the Unted Natons Economc
Commsson for Europe (UNECE) Work Sesson on the Communcaton and Dssemnaton of
29
technoogcay, t may be possbe to obtan access to, and to mx and
match (mash up or remx) varous nformaton nputs or products, ths
does not mean that such remxng or reuse of the nformaton nputs or
products s awfu.
In the Unted Kngdom, the Power of Informaton Taskforce dentfed
nconsstency of censng of government nformaton (partcuary
geospata data) as a persstent probem whch nhbted nnovaton, reuse
of nformaton and economc actvty.
75
Even where government
nformaton was avaabe, t was often sub|ect to cences that prevented
access and reuse.
76
It s acknowedged that standardzng and freeng up
permssons s "vta to encourage sharng and expermentaton wth
nformaton."
77
In 'he Power of Information 'as,force +eport (February
2009) the Taskforce recommended that censng condtons for geospata
data shoud be "smpfed and standardzed across the board and, for a
but the heavest eves of use, shoud be on standard terms and
condtons".
78
More generay, the Taskforce recommended the adopton of
a unform system of nformaton reease and censng to appy across a
pubc sector bodes and that ndvdua agences shoud refran from
varyng the standard terms for ther sector.
79
%"e2i-"e "icensing favo#re over a noGcopyright approach
Athough there have been cas for a no-copyrght approach to PSI (or parts
of t, such as egsaton, |udgments, offca records etc),
80
the ony
|ursdcton wordwde that does not recognze copyrght n any
government-produced materas s the federa eve of government n the
Unted States.
81
Lke Austraa, many governments wordwde adopt a
poston wth respect to copyrght ownershp that s at the opposte end of
the spectrum to the Unted States federa government, contnung to
recognze government ownershp of copyrght n a or most works
produced or commssoned by the government.
82
Others, such as New
Statstcs, Poand, May 2009, at para 32, avaabe at
http://www.unece.org/stats/documents/ece/ces/ge.45/2009/wp.11.e.pdf.
75
R Aan, Power of Information 'as,force +eport, February 2009, at p 22, avaabe at
http://pot.cabnetoffce.gov.uk/pot/category/fna-ntroducton/.
76
See HM Government, Putting the ?rontline ?irst/ Smarter !overnment, December 2009,
at p 27, avaabe at http://www.hmg.gov.uk/meda/52788/smarter-government-fna.pdf.
77
UK Government, The Natona Archves, Informaton Matters: budng governments
capabty n managng knowedge and nformaton, November 2008, at p 7, avaabe at
http://www.natonaarchves.gov.uk/servces/pubcatons/defaut.htm.
78
Ibd, recommendaton 7 at p 20. http://www.hmg.gov.uk/meda/52788/smarter-
government-fna.pdf.
79
Ibd, recommendaton 8 at p 24.
80
See C Oppenhem, Crown Copyright and 6S.) (1996) 2 |ourna of Informaton, Law and
Technoogy (|ILT), avaabe at
http://www2.warwck.ac.uk/fac/soc/aw/e/|t/1996_2/speca/oppenhem (accessed 9
November 2009.
81
See Copyright Act 1976, s 105 states: "Copyrght protecton under ths tte s not
avaabe for any work of the Unted States Government, but the Unted States Government
s not precuded from recevng and hodng copyrghts transferred to t by assgnment,
bequest, or otherwse." A "work of the Unted States Government" s defned n s 101 as "a
work prepared by an offcer or empoyee of the Unted States Government as part of that
persons offca dutes".
82
For a comprehensve survey of the copyrght poston n dfferent countres and n each
of the states of the Unted States, see Appendx A and Appendx B n B W Mtche, Wor,s of
the (nited States !overnment/ 'ime to Consider Copyright Protection>, LLM Thess, George
30
Zeaand, have excuded a range of pubc materas from the scope of
government copyrght, but retan copyrght n other materas.
83
Even
wthn the Unted States, the ma|orty of States contnue to recognze
government copyrght n a arge proporton of ther materas.
84
As Bradey
Mtche observes:
The |US federa governments| prohbton on |copyrght| n federa
government works s fary unque. Other countres have dfferent poces,
but none as extreme as that of the Unted States. The U.S. pocy aso
appes ony to the federa government; most states protect ther
government works through copyrght aw. And the pocy appes ony to
copyrghts, wth the federa government abe and qute wng to patent
the resuts of federa research.
85
The CLRCs Crown Copyright report (2005) recommended the aboton of
copyrght n certan |udca, egsatve and executve materas, namey:
bs, statutes, reguatons, ordnances, by-aws and procamatons,
and expanatory memoranda or expanatory statements reatng to
those materas;
|udgments, orders and awards of any court or trbuna;
offca records of paramentary debates and reports of parament,
ncudng reports of paramentary commttees;
reports of commssons of nqury, ncudng roya commssons and
mnstera and statutory nqures; and
other categores of matera prescrbed by reguaton.
86
The aboton of copyrght n these (or other) government materas was
strongy opposed by the States and Terrtores as we as by a number of
Commonweath government agences. The States and Terrtores were
frmy of the vew that copyrght ownershp was not ncompatbe wth free
and open access to prmary ega materas. Instead, they favoured
approaches based on the adopton of prncpes for reuse of PSI or
standard genera cences to the pubc whch woud factate greater
pubc access to PSI whe aowng governments to retan some contro
over the materas and ensure ther ntegrty.
That subsstence of copyrght s not ncompatbe wth promotng access to
and reuse of PSI s expcty acknowedged n the OECD PSI
Recommendaton whch accepts that "|t|here s a wde range of ways to
dea wth copyrghts on pubc sector nformaton, rangng from
Washngton Unversty Schoo of Law, Washngton DC, 2002, avaabe at
nknghub.esever.com/retreve/p/S1352023704000279.
83
Under the Copyright Act 1994 (NZ), there s no copyrght n Bs, Acts, reguatons,
byaws, Paramentary Debates, reports of seect commttees tabes before the House of
Representatves, |udgments of any court or trbuna, reports of Roya commssons,
commssons of nqury, mnstera nqures or statutory nqures.
84
See Appendx B n B W Mtche, Wor,s of the (nited States !overnment/ 'ime to
Consider Copyright Protection>, LLM Thess, George Washngton Unversty Schoo of Law,
Washngton DC, 2002, avaabe at
nknghub.esever.com/retreve/p/S1352023704000279.
85
See B W Mtche at p 17 and Tabe 1 at pp 20-21.
86
CLRC, Crown Copyright, 2005, para 9.38 at p 138.
31
governments or prvate enttes hodng copyrghts, to pubc sector
nformaton beng copyrght-free".
87

Submssons to the CLRCs Crown copyrght revew stated that the
queston of how government copyrght s best managed to enabe
dssemnaton and reuse of PSI shoud not smpy revove around the
queston of whether or not copyrght shoud be retaned. Professor Bran
Ftzgerads submsson stated:
Ten years ago the queston woud smpy have been whether the Crown
shoud or shoud not have copyrght. Many advocatng for no copyrght
woud have been seekng open access to nformaton. However, today we
know more about the ntrcaces of open content censng. It s arguabe
that a broader and more robust nformaton commons can be deveoped by
everagng off copyrght rather than merey "gvng away" matera.
88
The Commonweath Governments submsson stated that, rather than
changng the copyrght egsaton, the Commonweath shoud frst deveop
best practce pocy gudenes for Crown copyrght ownershp.
89
Ths
approach was supported n the submsson of the Commonweath
governments Bureau of Meteoroogy whch emphaszed the mportance of
ensurng that a "proper pocy s n pace for access to Crown Copyrght":
90
It s the vew of the Commonweath Bureau of Meteoroogy that there s no
reason to abosh Crown Copyrght or to change the aw n ths area. .
|T|he Bureau of Meteoroogy supports the retenton of Crown Copyrght n
pretty much ts present form couped wth a pocy framework that
maxmses the data, nformaton and know-how that s paced n the pubc
doman.
On the specfc ssue of copyrght n |udgments, |udge McG of the Dstrct
Court of Oueensand commented that whe aboshng copyrght woud
brng "no obvous practca advantage" (snce |udgments are aready
wdey dssemnated), t coud resut n unforeseen dsadvantages:
Havng ownershp of |udca materas . does not have to be nconsstent
wth havng them ready avaabe, but woud be usefu n dscouragng
napproprate use of them.
91

|udge McG ponted out that aboshng copyrght n |udgments "may we
be a huge ncentve to pagarsm", notng:
87
The "Copyrght" prncpe, OECD, +ecommendation of the Council for 2nhanced Access
and .ore 2ffective (se of Pulic Sector Information, C(2008)36, OECD, Pars, 2008,
avaabe at http://www.oecd.org/dataoecd/0/27/40826024.pdf.
88
See further B Ftzgerad, 'he Australian Creative Commons Pro5ect, (2005) 22(4)
Copyrght Reporter 138 at p 143. Professor Bran Ftzgerads submsson to the Copyrght
Law Revew Commttees revew of Crown Copyrght (2004) s reproduced n Chapter 18. It
s aso avaabe at
http://www.ag.gov.au/agd/WWW/crHome.nsf/Page/Present_Inqures_Crown_copyrght_sub
mssons_2004_Sub_No_17_-_Professor_Bran_Ftzgerad.
89
CLRC, Crown Copyright, 2005, para 4.06, at p 32.
90
Ibd, referrng to submsson no. 18 at p 1.
91
Submsson 70, p2, referred to n CLRC, Crown Copyright, 2005, para 4.50, at p 42.
32
Any |udge woud be peased to see hs exposton of any partcuar ega
pont or prncpe cted by others, but woud I thnk be ess peased to see t
camed by others as ther own.
92
It has occasonay been suggested that f copyrght n government
materas were to be aboshed, other means coud be substtuted to
enabe governments to exercse an approprate degree of contro over PSI,
such as contractua obgatons, technoogca mechansms and
|ursdcton-specfc aws governng the use of offca government nsgna
(such as crests and sheds) dspayed on government materas. These
arguments were consdered, but re|ected, by the Vctoran Paraments
Economc Deveopment and Infrastructure Commttee (EDIC) n ts Inquiry
into Improving Access to 1ictorian Pulic Sector Information and 0ataB
93
The Commttee concuded:
The remova of copyrght from Vctoran Government pubc sector
nformaton (PSI) s unkey to smpfy access to and re-use of PSI. Access
to and re-use of PSI w be best factated by ssung cences n
accordance wth exstng copyrght provsons.
94
|emphass added|
Whe permttng a broad range of deangs by users of the materas,
government may |ustfaby seek to retan some rghts over the matera.
For much PSI, t s mportant that nformaton about the orgn, currency
and meanng of the work contnues to be dspayed on or n assocaton
wth t (such as va a hypernk). Where government PSI takes the form of
documents whch have status as offca or authortatve versons, t w be
mportant to ensure that atered or naccurate versons are not crcuated,
partcuary f they mseadngy appear to be the correct, orgna versons
produced by government.
Athough superfcay attractve, a "no copyrght" approach towards the
structurng of the pubc doman s not wthout probems or dsadvantages.
Where, as s the case wth the US federa government, there s no
copyrght n works produced by government empoyees, there s nothng
to prevent a recpent of PSI from ncorporatng t nto a new copyrght
work and assertng ther copyrght n the new work aganst other partes
(ncudng the government).
95
The consequences were hghghted n the
92
Ibd, referred to n CLRC, Crown Copyright, 2005, para 4.71 at p 54.
93
Vctoran Parament, Economc Deveopment and Infrastructure Commttee, Inquiry into
Improving Access to 1ictorian Pulic Sector Information and 0ata #?inal +eport&, |une 2009,
avaabe at http://www.parament.vc.gov.au/edc/nqures/access_to_PSI/fna_report.htm
accessed on 30 |une 2009. See para 6.1.2 at p 66 and para 6.1.2.2 at p 67.
94
Ibd.
95
Davd Boer expans: "|A|s Anne Ftzgerad, Bran Ftzgerad, and |essca Coates of
Austraa have ponted out, "puttng a such matera nto the pubc doman runs the rsk
that matera whch s essentay a pubc and natona asset w be approprated by the
prvate sector, wthout any beneft to ether the government or the taxpayers." For
exampe, the prvate sector may ncorporate the pubc-doman matera nto a vaue-added
propretary mode and fnd other means to take the nformaton prvate. The cassc
nstance of ths s West Pubshngs domnance n the repubshng of U.S. federa court
decsons. Open-content censes offer a souton by ensurng that taxpayer fnanced works
w be avaabe to and beneft the genera pubc": Davd Boer, 1iral Spiral/ 6ow the
Commoners $uilt a 0igital +epulic of 'heir )wn, The New Press, New York, 2008 at pp
192-193, avaabe at http://www.vraspra.cc/downoad-book. The probems that emerge
when a prvate sector party repubshes government materas wth the addton of
suffcent nput to create a new copyrght work were vvdy demonstrated n a seres of
copyrght dsputes n the Unted States n the 1980s and 1990s n whch commerca
pubshers sought to prevent ther compettors from ncudng smpe formattng features
33
submssons of federa and State governments to the CLRC revew of
Crown copyrght n 2004-05. The New South Waes Attorney Generas
Department observed that the absence of Crown copyrght may resut n
governments payng more than once for the producton of nteectua
property:
|T|he absence of Crown copyrght coud ead to the pubc payng for the
producton of nformaton by government and then ts secondary sae by
prvate vendors.
96
The Unted States experence has ed to reapprasa of the
approprateness of the banket "no copyrght" rue that appes to works
produced by federa government empoyees, partcuary where such
works are subsequenty ncuded n propretary products, often wthout
any ndcaton of the source, currency or accuracy of the PSI and absent ts
accompanyng metadata or an expanaton of what the matera
represents.
97
Even f there s no copyrght n PSI and the governments
pocy favours open access and reuse, barrers such as the expense of
obtanng the matera, makng copes of t and convertng t nto reusabe
formats may mean that ony a sma proporton of potenta reusers w
have the capta or expertse to convert the raw (non-copyrght) matera
obtaned from the government nto new, vaue-added copyrght works.
Increasngy, t s apparent that restrctons on access to and reuse of PSI
are due ess to the subsstence of copyrght n government materas than
to the faure to adopt a cear pocy poston on access and reuse and the
ack of mechansms (rangng from censng to use of nteroperabe fe
formats) to enabe open access and reuse.
>aiver of copyright in "egis"ation an j#gments
It s wdey acknowedged by Austraan governments that open access to
ega materas s fundamenta n a democracy and most |ursdctons am
to ensure that they can be freey and ready accessed.
98
As observed n
1981 by the (then) Chef |ustce of New South Waes, Sr Lawrence Street:
In a free and democratc socety, the aw and a ts documentaton, both
statutory and nterpretve, that s to say both n Acts of Parament and n
(for exampe, added page numbers) n ther own works. Ironcay, the reatvey trva
addtons whch suffced to estabsh the pubshers copyrght n ther repubshed
coecton of non-copyrght government materas (such as egsaton and |udgments) coud
be reed upon to strengthen the pubshers domnance n the market and hnder effcent
and compettve dstrbuton of PSI. Athough the substantve contents of the pubshers
ega databases of federa egsaton and |udgments were not protected by copyrght, the
pubshers reed on the page numbers they ncuded when formattng the matera to
exercse excusve rghts and prevent other users from pubshng versons of the matera
that ncuded those page numbers.
96
See Copyrght Law Revew Commttee, Crown Copyright, 2005 at p 81, para 5.66. A
smar concern was expressed by the federa governments Department of Fnance and
Admnstraton.
97
See B W Mtche, Wor,s of the (nited States !overnment/ 'ime to Consider Copyright
Protection>, LLM Thess, George Washngton Unversty Schoo of Law, Washngton DC,
2002, avaabe at nknghub.esever.com/retreve/p/S1352023704000279.
98
See Austraan Prces Surveance Authorty, Inqury nto the pubcatons prcng pocy of
the Austraan Government Pubshng Servce (AGPS), December 1992, at p 92: "The
Authorty s commtted to unhndered pubc access to any egsaton passed by
Parament. Legsaton estabshes rghts and obgatons of ctzens..There shoud be no
restrcton on the dssemnaton of such nformaton."
34
|udgments, must be pulici 5uris avaabe to a to be studed, to be
used and to be quoted as a matter of pubc enttement.
99
To ensure rghts to access and use ega materas are recognzed,
governments n Austraa, the Unted Kngdom and Canada have decared
genera cences to reproduce egsaton and |udgments (generay
referred to as wavers of copyrght).
The Northern Terrtory and New South Waes governments, actng on the
bass of ther prerogatve rghts, have expressy decared, n notces
pubshed n the Government Gazette, that they w not enforce ther
copyrght n egsatve materas and |udgments (see $ppeni2 C). By
wavng ther copyrght nterests these governments seek to carfy and
strengthen the pubcs rghts, whe reservng resdua contro over the
use of the materas.
100

NSW frst waved copyrght n egsaton n 1993,
101
foowed by a
correspondng waver of copyrght n decsons of NSW courts and trbunas
n 1995.
102
The Gazette notces recognze the desrabty of open access
to egsaton and |udgments and authorse any pubsher to "pubsh and
otherwse dea wth" any egsatve matera,
103
sub|ect to certan
condtons ncudng that any pubcaton must not ndcate drecty or
ndrecty that t s an offca verson of the matera and that matera
shoud be accuratey reproduced n proper context and be of an
approprate standard.
104
The notce states that NSW w not enforce
copyrght n egsatve matera to the extent that t s pubshed or
otherwse deat wth n accordance wth the authorsaton. For ths
purpose, the authorsaton has effect as a cence bndng on the State.
99
+egBv !recium"=ing, unrep., 1 October 1981, quoted n the Austraan Law |ournas
edtora, 'he Crown and copyright in pulicly delivered 5udgments, (1982) 56 AL| 326, 327,
cted n | Bannster, )pen access to legal sources in Australasia/ Current 0eate on Crown
Copyright and the Case of the Anthropomorphic Posto*, (1996) 3, |ourna of Informaton,
Law and Technoogy (|ILT), avaabe at
http://www2.warwck.ac.uk/fac/soc/aw/e|/|t/1996_3/bannster/; see aso CLRC, Crown
Copyright, 2005, para 4.44 at pp 45-46.
100
See CLRC, Crown Copyright, 2005 at pp 58-59
101
NSW Government Gazette, 27 August 1993, No. 94 of 1993, at p 5115; ths was
repaced by another Notce n 1996: The Hon |W Shaw OC, MLC, Attorney-Genera, Notce:
Copyrght n egsaton and other matera
NSW !overnment !aCette No. 110 (27 September 1996) p. 6611, whch was n turn vared
n 2001 (Gazette No 20 of 19 |anuary 2001), avaabe at
http://www.egsaton.nsw.gov.au/copyeg_2001.pdf.
102
The Hon |ohn Hannaford MLC, Attorney Genera, Notce: Copyrght n |udca decsons
NSW !overnment !aCette No.23 (3 March 1995) p. 1087
103
"Legsatve matera" s defned n the nstrument to mean Acts of the Parament of New
South Waes and Bs ntroduced nto Parament, statutory rues, envronmenta pannng
nstruments, procamatons or orders made under an Act of the Parament of New South
Waes and pubshed n the Government Gazette, admsson rues made under the Legal
Profession Act 1987, any other nstruments that are requred under any aw to be made,
approved or confrmed by the Governor or a Mnster of State for New South Waes and that
are pubshed n the Government Gazette, and offca expanatory notes and memoranda
pubshed n connecton wth any of these.
104
The Honourabe |.W. Shaw OC, MLC, Attorney-Genera for New South Waes on behaf of
the State of New South Waes, Notce: Copyrght n egsaton and other materas,
pubshed n Gazette No 110 of 27 September 1996 and vared n Gazette No 20 of 19
|anuary 2001 (to repace the nstrument pubshed n Government Gazette No 94 of 27
August 1993 n reaton to copyrght) http://www.egsaton.nsw.gov.au/copyeg_2001.pdf.
35
In Canada, under the +eproduction of ?ederal Law )rder (1997),
105
Canadan federa egsaton and |udgments can be freey reproduced,
provded that "due dgence s exercsed n ensurng the accuracy of the
materas reproduced and the reproducton s not represented as the
offca verson".
106

The poston n the Unted Kngdom was expaned n 1996 by Gordon
Robbe (then) Head of Copyrght n Her Ma|estys Statonery Offce
(HMSO):
Crown copyrght has for years been waved n respect of prnted
reproducton of statutory matera n any vaue added context, whch
effectvey gves aw pubshers free and unrestrcted access to Acts and
|Statutory Instruments| SIs for use n ther wde range of textbooks and
reference matera, thus enabng them to keep the prces of ther exceent
pubcatons at a ready affordabe eve, for the beneft of students, the
aw professon and the genera pubc; . ths waver has been extended n
the same terms to reproducton of Acts and SIs n a other formats.
107

)se of stanari&e open content "icensing -y $#stra"ian
government agencies
Where as n Austraa governments own copyrght n a very extensve
range of materas, they are n the poston of beng abe to manage ther
copyrght nterests through open content censng strateges (such as
Creatve Commons cences), to create what amounts to a "commons" of
PSI that can be ready accessed, used and reused by ndvduas, not-for-
proft organsatons and busnesses. As government materas are
ncreasngy dstrbuted onne n dgta form, governments can contrbute
to the pubc doman by appyng smpe, automated, computer-readabe
cences whch grant extensve rghts to users to access, use, reuse and
share the censed materas. By adoptng a copyrght-based open content
censng approach to bud the pubc doman of PSI, government can
ensure that ts open access pocy ob|ectves are acheved.
To ensure that dverse tems of PSI can be used and remxed, key
Austraan government departments Geoscence Austraa (GA), the
Austraan Bureau of Statstcs (ABS) and the Bureau of Meteoroogy (BoM)
have ntroduced Creatve Commons censng for ther nformaton
products, whether dstrbuted n hard copy (n prnt form), on DVD or by
drect downoad from a webste.
The approach of makng PSI avaabe under CC or other open content
cences whch enabe government copyrght matera to be freey
censed, wthout the need for further permssons or compensaton s aso
105
SI/97-5, 131 Can. Gaz. (PT II) 444 (8 |anuary 1997); See
http://www.pubcatons.gc.ca/hepAndInfo/cc-dac/reproducton-e.htm.
106
See CLRC, Crown Copyright, 2005, at para 3.49 at p 29.
107
G Robbe, Crown Copyright " $<te Noire or White =night>, (1996) ; |ourna of
Informaton Law and Technoogy (|ILT)
http://www2.warwck.ac.uk/fac/soc/aw/e|/|t/1996_2/speca/robbe (accessed 9 November
2009).
36
beng mpemented n the Unted Kngdom
108
and New Zeaand.
109
As
eadng Canadan commentator Professor Mchae Gest of the Unversty of
Ottawa comments,
Ths approach provdes an effcent means of freeng up government works
wthout the need for egsatve change.
110
Creative Commons ECCF "icences
444
The Creatve Commons (CC) pro|ect was estabshed n the Unted States
n 2001 wth the am of usng open censng to create a commons of
copyrght matera that coud be ready used by others wthout fear of
nfrngement. It deveoped a sute of open content cences based on a
"some rghts reserved" copyrght mode rather than the tradtona "a
rghts reserved" mode. The Creatve Commons Austraa (CCau) offce
has transated ("ported") the CC sute of cences to operate under
Austraan copyrght aw.
CC cences are standardzed copyrght cences whch grant permsson to
use copyrght works, n accordance wth the partcuar standard set of
condtons seected by the censor. Under the CC approach, the copyrght
owner retans ownershp of ther work but grants permsson to users to
reproduce the work, dstrbute t, dspay or perform t pubcy, make
dgta pubc performances of t (e.g. webcastng), and make verbatm
copes of the work n a dfferent format.
A recpent of a CC-censed work s not at berty to use t competey
wthout restrcton, but must respect the rghts that have been reserved
(or kept) by the copyrght owner. In practce, the user of a CC-censed
work w be requred to observe condtons that range from smpy
acknowedgng the author of the work to not usng t for commerca
purposes and not makng any dervatve works. Each of the CC cences
has an attrbuton condton (BY) whch requres that the author or any
other named party s attrbuted n the form specfed n the cence, that
the work s not fasey attrbuted to another author and that the work s
not atered so as to pre|udce the authors reputaton. The censor may, n
108
R Aan, Power of Information 'as,force +eport, February 2009, at
http://pot.cabnetoffce.gov.uk/pot/category/fna-ntroducton/
109
On 1 |uy 2009, the Mnstry for the Envronment (Manatu Mo Te Taao) announced that t
was makng two mportant envronmenta databases - the Land Cover Database (LCD) and
Land Envronments New Zeaand (LENZ) cassfcaton - avaabe onne, for free and
censed under an unrestrcted Creatve Commons cence (CC-BY). See Land Informaton
New Zeaand n consutaton wth the State Servces Commsson and others,
(nderstanding our !eographic Information Landscape/ A New Dealand !eospatial Strategy,
(|anuary 2007) avaabe at www.geospata.govt.nz/assets/Geospata-Strategy/nz-
geospata-strategy-2007.pdf. The draft New Dealand )pen Access and Licensing
?ramewor, (NZGOAL) observed that there are at east three broad categores of censng
n pace across New Zeaand government departments and that these "varous and
nconsstent censng practces" were a cause of "confuson, uncertanty and crtcsm" by
members of the pubc: (New Zeaand Government, State Servces Commsson, 0raft New
Dealand !overnment )pen Access and Licensing ?ramewor, #ND!)AL&, August 2009, see
especay p7, avaabe at http://www.e.govt.nz/pocy/nformaton-
data/nzgoaframework.htm.
110
Canada Draggng ts Feet on Open Data Intatves, Mchae Gest, 14 December 2009 at
http://www.mchaegest.ca/content/vew/4617/135/.
111
See generay, Anne Ftzgerad, Neae Hooper and Bran Ftzgerad, "Creatve Commons
and Government" n BF Ftzgerad (ed) Access to Pulic Sector Information/ Law,
'echnology % Policy (forthcomng, Sydney Unversty Press, 2009).
37
addton, choose to cense the work under one or more of the foowng
condtons:
Non Commerca (NC) the work may ony be used for non
commerca purposes;
No Dervatves (ND) ony exact copes of the work can be coped,
shared or used; dervatve works based on the orgna work (e.g.
adaptatons or mash-ups) are not permtted;
Share Ake (SA) users may create and dstrbute dervatve works,
but dervatve works shoud ony be dstrbuted under cence terms
dentca to those that appy to the orgna work (ths term ensures
that the matera remans open).
The standard sets of censng condtons can be combned to offer a range
of sx cences.
112
The ony condtons whch cannot be used n the same
cence are No Dervatves (ND) and Share Ake (SA) terms as they are
ncompatbe wth each other.
Each of the CC cences s expressed n three ways: (1) easy-to-recognse
CC symbos and cons, (2) the "awyer-readabe" CC Lega Code and (3)
machne readabe RDF code.
The Creatve Commons Attrbuton cence (CC-BY) s the most "open" of
the CC cences and w often be the cence seected by government
agences that are seekng to make ther PSI openy avaabe for access
and use by the Austraan pubc wth mnma restrctons. Athough,
theoretcay, any of the CC cences coud be apped to PSI, n practce the
CC-BY cence s the cence that has been most commony used by
government agences. It was the cence adopted by GA, the ABS and the
BoM (see descrptons beow).
If more restrctve CC cences are apped to PSI, the terms ncuded w
usuay comprse the Non Commerca term (CC-BY-NC) and/or the No
Dervatves term (CC-BY-ND or CC-BY-NC-ND). The No Dervatves term, n
partcuar, may be used to ensure that the matera reeased under CC s
dstrbuted ony n ts orgna and compete form. The Share Ake term s
ess key to be reevant for PSI because t mposes an addtona
obgaton on ctzen-users that any works ncorporatng the PSI must be
censed under the same terms, whch s not dea n promotng dverse
use of PSI and spontanety n nnovaton.
Creative Commons an Government
44?
(#eens"an: Government !nformation Licensing %ramework EG!L%F
Project
112
These are: Creatve Commons Attrbuton cence (CC-BY); Creatve Commons Attrbuton
Non Commerca cence (CC-BY-NC); Creatve Commons Attrbuton Share Ake cence (CC-
BY-SA); Creatve Commons Attrbuton Non Commerca Share Ake cence (CC-BY-NC-SA);
Creatve Commons Attrbuton No Dervatves cence (CC-BY-ND); and Creatve Commons
Attrbuton Non Commerca No Dervatves cence (CC-BY-NC-ND).
113
See generay, Anne Ftzgerad, Neae Hooper and Bran Ftzgerad, "Creatve Commons
and Government" n BF Ftzgerad (ed) Access to Pulic Sector Information/ Law,
'echnology % Policy (forthcomng, Sydney Unversty Press, 2009).
38
Perhaps the snge most mportant ntatve n eadng the way towards
the adopton of CC censng n the government sector n Austraa has
been the Government Informaton Lcensng Framework Pro|ect (GILF
pro|ect).
114
It grew out of a pro|ect ntated n 2004 by the Oueensand
Spata Informaton Counc (OSIC)
115
to address probems caused by the
prevang ega arrangements and practces for data access and sharng,
both wthn government and between government and the prvate sector.
Snce 2007, GILF has contnued under the umbrea of the Cooperatve
Research Centre for Spata Informaton (CRC-SI), as a coaboraton
between OUTs Law Facuty and Oueensand Governments Offce of
Economc and Statstca Research and the Department of Natura
Resources and Water (now Department of Envronment and Resource
Management).
116
The pro|ect set out wth the ob|ectve of deveopng a censng mode for
PSI, wth standardsed nformaton censng arrangements whch coud be
recommended for use wth a knds of government copyrght materas to
enabe enhanced, seamess, on-demand access to PSI.
117
Importanty, the
GILF pro|ect dd not drecty address nformaton pocy. However, by
focusng attenton on removng mpedments to accessng PSI caused by
nadequate or napproprate censng practces, GILFs fndngs and
recommendatons about the use of CC cences on PSI drecty nfuenced
the revews of nformaton access poces by the federa government,
118
114
Inta consderaton by the authors, Anne Ftzgerad and Neae Hooper (then awyers n
the Crown Law Offce, Oueensand Department of |ustce and Attorney Genera), of the
appcabty of CC cences to government copyrght materas was n response to a 2004
request from Tm Barker, (then) Assstant Government Statstcan and Drector,
Oueensand Spata Informaton Offce, Offce of Economc and Statstca Research (OESR),
Oueensand Treasury, Graham McCom, Prncpa Advsor, Natura Resources and Water,
Oueensand and Rob Bschoff. For some tme, these offcers had been nvestgatng ways
of mprovng the fow of spata nformaton wthn the Oueensand Government, and
between the State and other eves of government and the prvate sector. They had
recenty vewed a vdeo presentaton by Professor Lawrence Lessg devered at an event at
OUT n 2004 to mark the aunch of Creatve Commons n Austraa and mmedatey
grasped the potenta for CC cences to be apped towards achevng ther ob|ectve of
reducng mpedments to the fow of spata nformaton. Other members of the team n the
OESR that progressed the Government Informaton Lcensng Framework (GILF) pro|ect
from 2005 ncuded |enny Bopp, Brendan Cosman, Cathy McGreevy, and Trsh Santn-Dore.
For a chronoogca account of deveopments, see the GILF pro|ect webste at
http://www.gf.gov.au
115
Government Informaton Lcensng Framework (GILF) Pro|ect webste,
http://www.gf.gov.au; see aso the Oueensand Spata Informaton Offce (OSIC) webste
for further background nformaton about GILF,
http://www.qsc.qd.gov.au/OSIC/OSIC.nsf/CPByUNID/6C31063F945CD93B4A257096000CBA
1A accessed on 14 November 2009.
116
See A Ftzgerad, )pen Access Policies, Practices and Licensing/ A review of the literature
in Australia and selected 5urisdictions, OUT, |uy 2009, avaabe at
http://www.aups.org/news/CompedLteratureRevewnowavaabenhardcopy.|sp accessed
14 November 2009.
117
Oueensand Government, Oueensand Spata Informaton Counc, !overnment
Information and )pen Content Licensing/ An access and use strategy (Government
Informaton Lcensng Framework Pro|ect Stage 2 Report), October 2006, avaabe at
http://www.qsc.qd.gov.au/qsc/OSIC.nsf/CPByUNID/BFDC06236FADB6814A25727B0013C7E
E accessed 14 November 2009. See aso http://www.gf.gov.au
118
See Su-Mng Tam, Austraan Bureau of Statstcs, Informing the Nation 4 )pen Access
to Statistical Information in Australia, Su-Mng Tam, paper presented to the Unted Natons
Economc Commsson for Europe Work Sesson on the Communcaton and Dssemnaton
of Statstcs, Poand, May 2009, at para 37, avaabe at
http://www.unece.org/stats/documents/ece/ces/ge.45/2009/wp.11.e.pdf; and Venturous
Australia 4 $uilding Strength in Innovation, +eview of the National Innovation System,
39
other State governments,
119
and the New Zeaand Government.
120
At the
federa government eve, the GILF pro|ect served as a catayst for
renewed effort on the deveopment of a natona nformaton framework.
It was revewed and supported by the Cross-|ursdctona Chef
Informaton Offcers Commttee (C|CIOC) and was endorsed by the
Mnstera Onne and Communcatons Counc (OCC) n 2007.
The report, !overnment Information and )pen Content Licensing/ An
Access and (se Strategy
121
("the Stage 2 report"), pubshed n October
2006, descrbed the work undertaken durng Stage 2 of the GILF pro|ect
and set out ts fndngs and recommendatons.
122
Research durng Stage 2
confrmed the Stage 1 fndngs that the regme reguatng the coecton
and reease of government nformaton had deveoped n an ad hoc
manner, resutng n a fragmented, neffcent and confusng system of
contractua and statutory reguaton of nformaton access and reuse.
123
A
revew of censng practces and modes n severa Oueensand
Government agences found there were sgnfcant probems wth the
current approach, ncudng a ack of unformty and carty n censng
practces.
124
Stage 2 of the GILF pro|ect dentfed a need for cear and succnct gudng
prncpes for access, reuse and prcng and concuded that CC cences
were the most approprate for government nformaton. The Stage 2 report
supported the ntroducton of a smpfed system of open content censng
for the ma|orty of the nformaton made pubcy avaabe by the
Oueensand government. It recommended:
2008, avaabe at http://www.nnovaton.gov.au/nnovatonrevew/Pages/home.aspx
accessed on 11 |une 2009.
119
Vctoran Parament, Economc Deveopment and Infrastructure Commttee, Inquiry into
Improving Access to 1ictorian Pulic Sector Information and 0ata, |une 2009, avaabe at
http://www.parament.vc.gov.au/edc/nqures/access_to_PSI/fna_report.htm. In
December 2008 the South Austraan Cabnet decded to endorse mpementaton of the
GILF at an across-government eve to ts pubc sector nformaton.
120
On 1 |uy 2009, the Mnstry for the Envronment (Manatu Mo Te Taao) announced that t
was makng two mportant envronmenta databases - the Land Cover Database (LCD) and
Land Envronments New Zeaand (LENZ) cassfcaton - avaabe onne, for free and
censed under an unrestrcted Creatve Commons cence (CC BY). See Land Informaton
New Zeaand n consutaton wth the State Servces Commsson and others,
(nderstanding our !eographic Information Landscape/ A New Dealand !eospatial Strategy,
(|anuary 2007) avaabe at www.geospata.govt.nz/assets/Geospata-Strategy/nz-
geospata-strategy-2007.pdf.
121
Oueensand Government, Oueensand Spata Informaton Counc, !overnment
Information and )pen Content Licensing/ An access and use strategy (Government
Informaton Lcensng Framework Pro|ect Stage 2 Report), October 2006, avaabe at
http://www.qsc.qd.gov.au/qsc/OSIC.nsf/CPByUNID/ BFDC06236FADB6814A25727B0013C7E
E accessed 22 May 2009 . See aso http://www.gf.gov.au
122
Oueensand Spata Informaton Offce, Offce of Economc and Statstca Research,
Oueensand Treasury, !overnment Information and )pen Content Licensing/ An Access and
(se Strategy (Government Informaton Lcensng Framework Pro|ect Stage 2 Report),
October 2006, avaabe at
http://www.qsc.qd.gov.au/qsc/OSIC.nsf/CPByUNID/BFDC06236FADB6814A25727B0013C7E
E. See aso http://www.gf.gov.au
123
Ibd, p 36.
124
!overnment Information and )pen Content Licensing/ An Access and (se Strategy
#Government Informaton Lcensng Framework Pro|ect Stage 2 Report), paras 3.11 and 12
at pp 3 and 4, avaabe at
http://www.qsc.qd.gov.au/qsc/OSIC.nsf/CPByUNID/BFDC06236FADB6814A25727B0013C7
EE. See aso http://www.gf.gov.au
40
2.1 That the Oueensand Government estabsh a pocy poston
that, whe ensurng that confdenta, securty cassfed and
prvate nformaton coected and hed by government
contnues to be appropratey protected, enabes greater use
and re use of other pubcy avaabe government data and
factates data sharng arrangements.
2.2 That the Creatve Commons open content censng mode be
adopted by the Oueensand Government to enabe greater
use of pubcy avaabe government data and to support
data sharng arrangements.
2.3 That OSIC and the Offce of Economc and Statstca
Research contnue to work cosey wth the Department of
|ustce and Attorney-Genera to ensure that any prvacy
provsons deveoped aso support new data use, re-use and
sharng poces.
2.4 That the Whoe-of-Government Informaton Lcensng Pro|ect
Stage 3: Draft Pro|ect Pan for the next phase of ths pro|ect
be endorsed.
2.5 That the Draft Government Informaton Lcensng Framework
tookt, whch ncorporates the sx Commons (Creatve
Commons Austraa) cences, be endorsed for use n pot
pro|ects proposed for Stage 3, whch nvoves Informaton
Oueensand, the Department of Natura Resources and
Water, the Envronmenta Protecton Agency, the Department
of Prmary Industres and Fsheres, the Offce of Economc
and Statstca Research of Oueensand Treasury and the
Oueensand Spata Informaton Counc, enabng testng of
the CC cences for mut-agency and whoe of-Government
arrangements.
2.6 That an appcaton be made through the ICT Innovaton Fund
and Mcrosoft Program Commttee n the Department of
Pubc Works for further fundng, to enabe the technca
deveopment of a Government Informaton Lcensng
Management System, consstent wth the Draft Government
Informaton Lcensng Framework tookt.
2.7 That a mted number of standard tempates be deveoped
to support nformaton censng transactons reatng to
confdenta or prvate nformaton or nformaton wth
commerca vaue and for whch the CC mode s not
approprate.
125

Government agences, n performng ther portfoo responsbtes, are
sub|ect to varous statutory obgatons and dutes whch may extend to
ther nformaton management and censng practces. Any censng
practces or arrangements mpemented by an agency must compy wth
a such statutory dutes and obgatons, as we as any pocy
125
Ibd, pp 1-2.
41
consderatons. The GILF pro|ect methodoogy draws attenton to the need
to dentfy and compy wth appcabe egsatve dutes and government
pocy constrants. Where statutory obgatons must be satsfed, a
government agency may st be abe to reease PSI for access and reuse,
but on a more mted bass than provded for n any of the CC cences. So
that agences are abe to make ther PSI avaabe for access and use,
whe st compyng wth ther statutory obgatons, the GILF pro|ect
proceeded (n accordance wth recommendaton 2.7) to deveop a
Restrctve Lcence tempate contanng standardsed causes ntended for
use where the CC cences are not approprate (such as where access and
use of PSI s restrcted on grounds of prvacy, confdentaty or statutory
constrants).
126
The GILF pro|ect envsaged that the sx CC cences and the
causes of the Restrctve Lcence woud cover the vast ma|orty of PSI. An
nteractve, web-based censng optons too has been deveoped to assst
government agency offcers and others dentfy whch of the sx Creatve
Commons cences or Restrctve Lcence tempate causes shoud be used
for a partcuar nformaton product or materas.
127

$#stra"ian Government
In the ast 2 years there have been sgnfcant deveopments and
ntatves, especay at the federa government eve, whch pont strongy
to ncreasng government pocy support for enhanced access to and reuse
of PSI. Four of these deveopments w be outned before consderng
severa specfc federa government agency ntatves nvovng the
operatona mpementaton of the CC cences to factate the outcome of
enhanced access to and reuse of PSI.
(1) The 2008 report on the Natona Innovaton System, 1enturous
AustraliaB $uilding strength in innovation ("the Cuter Report")
contans a strong recommendaton on the use of Creatve Commons
(CC) cences for pubc sector nformaton. Recommendaton 7.8
states that: "Austraan governments shoud adopt nternatona
standards of open pubshng as far as possbe. Matera reeased
for pubc nformaton by Austraan governments shoud be
reeased under a creatve commons cence."
128
The Cuter Report
tsef s reeased under a CC cence.
(2)On 12 May 2009, the federa government, as part of ts Budget
process, reeased a Whte Paper entted "Powering Ideas/ An
Innovation Agenda for the ;7
st
Century"
129
n response to the
126
The New Zeaand Governments draft New Zeaand Government Open Access and
Lcensng Framework (NZGOAL s takng a smar approach, wth a combnaton of sx CC
cences and a Restrctve Lcence tempate. See: New Zeaand Government, State Servces
Commsson, 0raft New Dealand !overnment )pen Access and Licensing ?ramewor,
#ND!)AL&, August 2009, at pp 11, 22, avaabe at http://www.e.govt.nz/pocy/nformaton-
data/nzgoaframework.htm.
127
See http://www.gf.gov.au.
128
See www.nnovaton.gov.au/nnovatonrevew/Documents/NIS-revew-web.pdf ,
Recommendaton 7.8 at pg 95.
129
Austraan Government, Department of Innovaton, Industry, Scence and Research,
Powering Ideas/ An Innovation Agenda for the ;7st Century, 12 May 2009,
http://www.nnovaton.gov.au/nnovatonrevew/Pages/home.aspx accessed on 11 |une
2009.
42
Venturous Austraa Green Paper.
130
On the specfc ssues of access
and reuse of PSI the Whte paper ndcates broad agreement wth
the Green Papers recommendatons and hghghts the federa
governments ntenton to bud on the work aready beng
undertaken by three of ts key federa agences:
131
"Commonweath
agences such as the Austraan Bureau of Statstcs, the Bureau of
Meteoroogy, and Geoscences Austraa aready gather, anayse,
and dssemnate nformaton n the pubc nterest. The Austraan
Government wants to bud on ths foundaton."
(3) On 14 |uy 2009, the Department of Broadband, Communcatons
and the Dgta Economy reeased the report, AustraliaEs 0igital
2conomy/ ?uture 0irections (the Dgta Economy report).
132
The
Dgta Economy report expressy recognsed "the dgta economy
and nnovaton benefts generated by open access to PSI, sub|ect to
ssues such as prvacy, natona securty and confdentaty".
133
Enabng open access to PSI s seen not ony as a way of promotng
pubc sector nnovaton but aso as a means by whch government
can factate prvate sector nnovaton.
134
Consstent wth the pocy
framework set out n the Dgta Economy report, the report tsef s
pubshed under a Creatve Commons Attrbuton-Non-Commerca-
No Dervatve Works (CC BY-NC-ND) 2.5 cence.
In ths envronment of ncreasng federa government support for
enhanced access to and reuse of PSI t s approprate, to consder, n turn,
the operatona steps taken by three agences: Geoscence Austraa (GA),
the Austraan Bureau of Statstcs (ABS) and the Bureau of Meteoroogy
(BoM).
EaFGeoscience $#stra"ia EG$F
GA has been an eary adopter of CC censng, beng the frst
Austraan government agency to mpement CC cences on ts
datasets n October 2008.
135
Earer that year, n response to
requests from cents for easer access GAs nformaton products
and cearer statements of the terms of use and reuse, GA undertook
an anayss and nterna tra of CC cences on a representatve
sampe of ts datasets to ascertan whether open content censng
woud meet the organsatons desred operatona outcomes.
136
Foowng successfu competon of the CC censng tra, GA
130
Cuter & Company, 1enturous Australia 4 $uilding Strength in Innovation, Revew of the
Natona Innovaton System, Report for the Austraan Government Department of
Innovaton, Industry, Scence and Research, September 2008, censed under a Creatve
Commons Attrbuton-Non Commerca-No Dervatve Works 2.5 Austraa Lcence, avaabe
at http://www.nnovaton.gov.au/nnovatonrevew/Pages/home.aspx accessed on 11 |une
2009.
131
Ibd, Chapter 6, "Pubc Sector Innovaton", at p 53, avaabe at
http://www.nnovaton.gov.au/nnovatonrevew/Pages/home.aspx..
132
See http://www.dbcde.gov.au/?a=117295.
133
AustraliaEs 0igital 2conomy/ ?uture 0irections, Department of Broadband,
Communcatons and the Dgta Economy, |uy 2009 at p 12, avaabe at
http://www.dbcde.gov.au/?a=117295.
134
Ibd, p 11.
135
See entry "New product cence mproves customer access" at
http://www.ga.gov.au/news/archve/2008/dec. GAs adopton of CC censng pre-dated the
mpementaton of CC cences by the Austraan Bureau of Statstcs by two months.
43
announced that t woud use CC cences on ts Moderate Resouton
Imagng Spectroradometer (MODIS),
137
the Austraan Atas of
Mnera Resources,
138
the GeoMAP 250K dataset, dgtsed Bureau of
Mnera Resources records and educatona matera about tsunam.
In announcng ts decson to appy CC cences to key mappng and
other nformaton products, GA emphassed that the use of the
"easy to understand, royaty-free, moduar, off the shef |CC|
cences" woud make t easer for vstors to GAs webste to use
and access nformaton. Further, adopton of CC cences by other
organsatons woud make t easer for users to merge spata and
geoscentfc data from dfferent sources. From 17 November 2009,
GA began censng a the matera on ts webste, and the OzCoasts
webste
139
whch t hosts, under the Creatve Commons Attrbuton
2.5 Austraa cence.
140

E-F $#stra"ian =#rea# of +tatistics E$=+F
In November 2005, the ABS abandoned the restrctve censng
practces t had prevousy apped n censng ts datasets, whch
had nvoved chargng fees for access to data and the restrcton or
prohbton of commerca downstream use by the censee and/or
others. Snce then the ABS has emnated vrtuay a charges for
data and restrctons on downstream use of ther data (that s, both
access and reuse), whether commerca or otherwse. Foowng the
ftng of fees, the number of hts and downoads of ABS pubcatons
ncreased dramatcay; downoads of eectronc pubcatons
ncreased from 91,000 n 2000/01 to more than 650,000 n 2005/06,
whe the number of page vews doubed from the end of 2005 to
the end of 2007.
444

136
Outned n the presentaton by |eff Kngwe, Head, Pro|ect Management Offce,
Informaton Servces Branch, Geoscence Austraa at the Open Access and Research
Conference, hosted by the Open Access to Knowedge Pro|ect (OAK Law), n Brsbane n
September 2008. See http://www.oakaw.qut.edu.au/node/61 for the powerpont sdes. The
anayss ncuded obtanng ega advce on appcaton of CC cences.
137
The GA webste expans the strategc mportance of the satete-based MODIS to goba
change modeng:
Moderate Resouton Imagng Spectroradometer (MODIS) s the key nstrument
aboard the satetes Terra (EOS AM-1), aunched on 18 December 1999, and Aqua
(EOS PM-1), aunched on 4 May 2002. MODIS vews amost the entre surface of the
Earth every day, acqurng data n 36 spectra bands over a 2330 km swath.
MODIS data w mprove the understandng of goba dynamcs and processes
occurrng on the and, n the oceans, and n the ower atmosphere. MODIS s
payng a vta roe n the deveopment of vadated, goba, nteractve Earth
system modes abe to predct goba change accuratey enough to assst pocy
makers n makng sound decsons concernng the protecton of our envronment.
138
See the Atas of Mnera Resources, Mnes and Processng Centres (the "Austraan Mnes
Atas") at http://www.austraanmnesatas.gov.au.
139
See http://www.ozcoasts.org.au/.
140
Note that some datasets such as MapConnect and GADDS coud not be made avaabe
mmedatey under CC cences because the OSDM regstraton s embedded n these
products.
141
Su-Mng Tam, Austraan Bureau of Statstcs, Informing the Nation 4 )pen Access to
Statistical Information in Australia, paper presented to the Unted Natons Economc
Commsson for Europe (UNECE) Work Sesson on the Communcaton and Dssemnaton of
Statstcs, Poand, May 2009, at paras 27 29 and 31, avaabe at
http://www.unece.org/stats/documents/ece/ces/ge.45/2009/wp.11.e.pdf.
44
However, even after the reaxaton of censng practces n 2005,
any sgnfcant redstrbuton of nformaton obtaned from the ABS
webste st had to be censed by the ABS. Athough the ABS
aowed broad use of ts webste content, often at no cost, the
censng process tsef (the requrement to ask permsson frst) was
seen as potentay actng as a barrer to those wshng to reuse
sgnfcant amounts of data. Consequenty, after dscussons wth
the open access communty and reevant government departments,
n md 2008 ABS decded to make nformaton on ts webste freey
and openy avaabe for access and reuse. Ths decson was
consstent wth ABSs phosophy of access to nformaton, as we as
Recommendaton 7.8 of the 1enturous Australia Green Paper.
142
On
18-19 December 2008, the ABS mpemented CC censng on ts
webste and began makng an extensve range of ts statstca
nformaton products avaabe onne under a Creatve Commons
Attrbuton 2.5 Austraa cence. Impementaton nvoved addng to
the footer on every page of the ABS webste an updated Copyrght
Statement, Dscamer notce, CC symbos, nformaton on how to
attrbute matera sourced from the ABS webste and a hypernk to
the CC cence. In effect, ABS makes ts webste matera openy
avaabe, on condton that users acknowedge ABS as the source of
the data.
143
EcF =#rea# of 8eteoro"ogy E=o8F
The Water Act ;99F (Cth) expanded the roe of BoM to ncude
management of water nformaton, wth the estabshment of the
Austraan Water Resources Informaton System (AWRIS).
144
BoM s
empowered to coect water nformaton from a range of sources n
order to pubsh a Natona Water Account and perodc reports on
water resource use and avaabty. The Natona Water Account w
be an ntegrated, natona water montorng and data coecton
servce that w aggregate hundreds of other government
departments and agences nformaton nto the one source.
145
It s
a requrement under the Water Act ;99F that BoM coect and
dssemnate water nformaton to the pubc n easy accessed
ways.
146
A ma|or outcome of BoMs work w be ncreased
transparency, confdence and understandng of water nformaton
on a natona eve. In seekng to estabsh enhanced access to and
reuse of water nformaton, BoM s currenty workng through a
varety of ssues wth the numerous partes requred to provde
water nformaton to t under the Water Act 2007.
147
142
1enturous Australia " $uilding Strength in Innovation, report on the Revew of the
Natona Innovaton System, Cuter & Company for the Austraan Government Department
of Innovaton, Industry, Scence and Research, 29 August 2008, avaabe at
http://www.nnovaton.gov.au/nnovatonrevew/Pages/home.aspx.
143
Note that the ABS does not use CC cences on |onty authored pubcatons for whch t
does not own copyrght. Such pubcatons carry ther own copyrght statement.
144
See: http://www.bom.gov.au/water|obs/awrs.htm.
145
See: http://www.creatvecommons.org.au/node/269.
146
See, for exampe, Water Act ;99F (Cth) s122 and s123; see further the Bureau of
Meteoroogy webste under the headng "Pubshng Water Informaton" at
http://www.bom.gov.au/water/reguatons/cc/dssemnaton.shtm.
147
The Water +egulations 2008 specfcay name approxmatey 260 partes who are
requred to gve BoM specfed water nformaton that s n ther possesson, custody or
contro.
45
BoM, n carryng out ts new roe of water nformaton management,
supports the use of the CC cences, and the CC BY cence n
partcuar, to promote the fow of nformaton wthn the new
Austraan Water Resource Informaton System (AWRIS).
148
BoM has
expressy recommended use of the CC BY cence wth the foowng
statement on ts webste:
The Bureau's pocy s to make ths nformaton avaabe for everyone's
beneft so that t can be wdey reused. To ensure wde reuse of water
nformaton - and that the data suppers copyrght s protected - the
Bureau of Meteoroogy recommends that data suppers use the Creatve
Commons Attrbuton Austraa 2.5 Lcence (the 'Creatve Commons
Lcence') to cover a data that they provde under the Water Reguatons
2008.
The Creatve Commons Lcence gves the communty permsson n
advance to use water nformaton, wthout havng to contact the supper
drecty. The Creatve Commons Lcence aows anyone to use the water
nformaton n a manner convenent to them, provded that they
acknowedge the orgna data supper. The orgna data supper w
generay be the person or organsaton that gave the water nformaton to
the Bureau.
149
As part of ts strategy to ensure the smooth provson of water
nformaton wthn AWRIS, BoM has actvey sought the support of
the States and Terrtores for adopton of a CC censng framework
for copyrght protected water datasets and databases.
150
BoMs
water data endeavour w be the argest snge censng of
government data n Austraa snce the ABS reeased ts census data
under a CC BY cence.
151
Moreover, AWRIS w make the process of
reeasng and markng data under the reevant CC cence an
automated process.
152
$vising #sers a-o#t permitte #ses of materia"
An attracton of open content cences such as the CC cences s that they
enabe users to be ceary nformed upon frst obtanng access to the
censed matera - about what they are permtted to do wth t. Unke the
statc webstes of the web 1.0 era, CC cences can be ncuded not ony on
the ndvdua pages of a webste but aso on each of the dgta ob|ects or
fes that are downoaded from the webste. Ths s an mportant advance
on prevang practce whch s for short copyrght notces to be dspayed,
f at a, on government webstes but ackng suffcent deta or carty for
148
See: http://www.bom.gov.au/water|obs/awrs.htm.
149
See: http://www.bom.gov.au/water/reguatons/cc/dssemnaton.shtm; see further:
http://www.bom.gov.au/water/reguatons/cc/ccLcence.shtm,
http://www.bom.gov.au/water/reguatons/cc/faq.shtm,
http://www.creatvecommons.org.au/node/269. The BoM Water Program aso endorses the
Oueensand Government Department of Envronment and Resource Managements
Government Informaton censng Framework (GILF) for Water Recommended Practce
standard, whch recommends CC as an nformaton management too n the pubshng of
water data: see http://www.creatvecommons.org.au/node/269.
150
See
http://www.parament.vc.gov.au/edc/nqures/access_to_PSI/submssons/PSI_Sub_17_Bur
eau_Meteroogy.pdf.
151
See: http://www.creatvecommons.org.au/node/269.
152
See: http://www.creatvecommons.org.au/node/269.
46
users to understand what they are permtted to do wth the matera
accessed on the ste.
153
A survey of 130 New South Waes government
webstes n md-2006 found a dversty of censng approaches and no
unform whoe-of-government pocy on copyrght notces.
154
There was no
copyrght notce at a on 11% of webstes, 8% had a basc one
155
and a
further 8% dspayed "A rghts reserved" statements or stated that there
was to be "no reproducton wthout express permsson", requrng users
to obtan wrtten permsson to reproduce the content on the webste for
any purpose.
156
A tota of 52% of webstes conveyed "ether no or few
expct permssons" other than those provded for n the Copyright Act.
157
Where a copyrght notce s dspayed on government webstes and other
materas, the statement typcay addresses what the user cannot do and
requres them to seek express permsson (sometmes, n wrtng) to do
anythng beyond the very crcumscrbed range of actvtes whch they are
permtted to do. A very rea advantage of usng open content cences
drafted aong the mode found n the CC cence sute s that they
expressy te users what they can do wth the censed matera. Ths
advantage of usng open content censng has been noted by the
Austraan Bureau of Statstcs (ABS):
An open censng framework carfes the responsbtes and obgatons of
ABS users n usng, sharng and reusng ABS data. Ths w n turn create
an envronment whch w optmse the fow of deas and nformaton of
soca and economc beneft.
158


In keepng wth the nature and purpose of government copyrght,
typcay, the ony restrctons mposed on users (where a CC BY cence s
apped to PSI) w be a requrement to mantan the censng nformaton,
to propery attrbute the censor, to not fasey attrbute another party as
censor and to dstrbute accurate copes of the matera. The attrbuton
cause can be worded to make t cear that users do not have authorty to
copy the governments or departments crest or ogo and that attrbuton
of the provder of the matera s not to be taken as an endorsement by
the government agency of the users actvtes.
153
As dscussed above where the rghts of reuse are ceary ndcated, such as through the
use of CC cences, the eectronc rghts management nformaton (ERMI) provsons set out
n Dvson 2A, Subdvson B of the Copyright Act 1968 provde ega protecton aganst
remova of or nterference wth the reevant ERMI.
154
In 2005, the NSW Premers Department pubshed Intellectual Property .anagement
?ramewor, for the NSW Pulic Sector, whch recommends that copyrght notces "shoud
aso make cear any automatc copyrght permsson the agency wshes to provde, any
restrctons on use of the matera, and how to obtan any further copyrght permssons",
avaabe at
http://www.premers.nsw.gov.au/TranngAndResources/Pubcatons/pubcatons.htm.
155
For exampe, Copyrght AHO 2002
156
Catherne Bond, 'he State of Licensing/ 'owards +euse of NSW !overnment
Information, Unockng IP Workng Paper, |2006| AIPLRes 43, at
http://www.aust.edu.au/au/other/AIPLRes/2006/43.htm.
157
Ibd, at para 2.4.2
158
Su-Mng Tam, Austraan Bureau of Statstcs, Informing the Nation 4 )pen Access to
Statistical Information in Australia, paper presented to the Unted Natons Economc
Commsson for Europe (UNECE) Work Sesson on the Communcaton and Dssemnaton of
Statstcs, Poand, May 2009, at para 34, avaabe
http://www.unece.org/stats/documents/ece/ces/ge.45/2009/wp.11.e.pdf.
47
Work s ongong n the Austraan Bureau of Statstcs to deveop "n|ector"
software to enabe CC cences to be added to downoadabe fes so that
users w be aerted to the censng condtons attachng to fes they
downoad and store n ther own database.
159
Recommenation 4 G Copyright "aw an management
practices sho#" faci"itate comp"e2 f"ows of information
within the p#-"ic sector' -etween the p#-"ic sector an
nonGgovernment partiesI an -etween nonGgovernment
parties
!entify the ifferent kins of copyright P+! materia"s Ein
terms of how they are create an -y whomF an
#nerstan how P+! f"ows within the p#-"ic sector' -etween
the p#-"ic sector an nonGgovernment parties an among
nonGgovernment parties.
Review the operation of copyright "aw an management
practices to ens#re P+! can f"ow as seam"ess"y as possi-"e'
consistent with the Bgovernment9sCepartment9sD open
access po"icy.
!n partic#"ar' ens#re that copyright "aw an practice oes
not impeeCrestrict the f"ow of materia"s s#ch as:
vo"#nteer comm#nity contri-#tions to government
cons#"tations' mash#ps' -"ogs' etcI
works free"y istri-#te Eon"ineF or in har copy -y
government agenciesI
informationa" works pro#ce -y nonGgovernment
parties an provie to government #ner stat#tory
reH#irements Efor e2amp"e reports on environmenta"
reaings' water f"ows an C52 emissionsFI
informationa" works pro#ce -y nonGgovernment
parties' s#-siiary to activities carrie o#t p#rs#ant
to the grant of rightsC"icence -y government Efor
e2amp"e' sche#"es of programs pro#ce -y ho"ers
of -roacasting "icencesF.
Thir party materia"s s#-mitte to government for
aministrative p#rposes Efor e2amp"e' #ner stat#tory
reH#irementsF G partic#"ar"y where entere into a p#-"ic
register G sho#" -e a-"e to -e copie -y government an
other thir parties' s#-ject to any restrictions that might -e
impose #ner p#-"ic recors "egis"ation' privacy' other
"egis"ation' contracts s#ch as commercia" in confience
o-"igations Es#-ject to margina" cost recovery' an a
pres#mption that open "icensing wo#" app"yF.
159
Ibd, at para 48.
48
Review the operation of the stat#tory "icence in s 43? to
ens#re that it oes not have #nintene conseH#ences Eeg
inc"#ing copyright science atasets pro#ce an provie
to government #ner internationa" arrangements which
reH#ire ata to -e free"y an open"y accessi-"e for re#se in
the scientific comm#nityF.
Recommenation / A $opt copyright management
practices appropriate to the we- 2.0 environment
$s P+! is increasing"y mae avai"a-"e on"ine in igita" form
Eeg thro#gh we-sites where fi"es in stanar formats can -e
own"oaeF' "icensing practices sho#" -e appropriate to
how P+! is accesse' #se an re#se in the we- 2.0 Ean
-eyonF environment.
+tatements of #sers9 rights sho#" -e c"ear"y provie
Ea"ong with metaataF on or in association with inivi#a"
igita" o-jects Efi"esF so that #sers are a-"e' in most
circ#mstances' to #se an re#se P+! witho#t having to
specifica""y reH#est permission to #seCre#se.
+tatements on government we-sites where P+! is mae
avai"a-"e sho#" c"ear"y state #sers9 rights Erather than
simp"y asserting copyright' stating what cannot -e one an
reH#iring #sers to seek permission for many #sesF an' as
far as possi-"e' -e consistent with "icensing permissions on
inivi#a" igita" o-jects Efi"esF.
Recommenation @ A )se simp"e' stanarise'
a#tomate "icences covering #se an re#se of P+!
Government agencies sho#" manage their copyright P+! to
ena-"e access' #se an re#se -y aopting simp"e'
stanarise' #nmeiate' a#tomate "icences which
provie c"ear statements of #sers9 permissions.
To ens#re "icense P+! can -e re#se' the "icences #se
sho#" -e compati-"e with simi"ar "icences #se -y other
p#-"ic an private sector parties.
Recommenation 0 A +#pport an g#iance for
agencies #sing open content Ep#-"icF "icences
The #se of open content Ep#-"icF "icences' s#ch as the
Creative Commons "icences' has -een recommene in
n#mero#s reviews of P+! access an re#se in $#stra"ia
EVenturous Australia' 7G!++' 1,!C' $>R!+F an overseas
E7J' )*F an severa" %eera"' +tate an "oca" government
agencies have anno#nce an intention to' or have -eg#n'
imp"ementing Creative Commons "icences on their P+!.
49
$ co""a-orative engagement sho#" -e entere into with
Creative Commons $#stra"ia to: eve"op know"ege' an
provie information to government agencies' a-o#t the
operation of the "icencesI provie fee-ack a-o#t
e2perience of $#stra"ian government agencies in app"ying
the "icences to P+!I provie inp#t into f#t#re revisions of
Creative Commons "icences to ens#re their appropriateness
for P+!I participate in isc#ssions with Creative Commons
nationa" organisations in other co#ntries where the "icences
are -eing #se for P+!I an f#rther eve"op techno"ogies
an systems to ena-"e a#tomation of "icensing.
50
?. R18561 C5P;R!G<T =$RR!1R+ T5
$RC<!6$L $7, C)LT)R$L 8$T1R!$L+
G#iance on copyright "aw an practice in igiti&ation
strategies
Practca gudance on copyrght aw and practce shoud be ncuded n
dgtzaton strateges deveoped by cutura and archva nsttutons,
partcuary when materas are to be dstrbuted n dgta form and on the
nternet, so that obstaces to dssemnaton can be dentfed and deat
wth so as not to have a contnung affect on access and reuse.
To avod ongong probems arsng from ssues such as nabty to dentfy
or ocate rghts owners and uncertanty about what (f any) rghts cutura
and archva nsttutons have to dgtze and make materas avaabe for
dstrbuton, strateges and practces shoud be deveoped to ensure that
nformaton and permssons are obtaned when materas are deposted or
acqured. Use of standardzed depost documents (usng terms and
wordng common to the sector) shoud be supported and factated.
K)np#-"isheL materia"s' Kperpet#a"L copyright an orphan
works
From submssons to the Government 2.0 Task Force and consutatons
wth cutura and archva nsttutons (gaeres, brares, archves and
museums often referred to as the "GLAM" sector), t s apparent that
concern s caused by the dffcuty of dentfyng who s entted to
partcuar rghts (and who can authorse use of a copyrght work) and the
potenta for copyrght to endure perpetuay n unpubshed materas.
160
Whe t may be dffcut to dentfy who s entted to exercse rghts n
pubshed works, the probems are compounded n the case of
unpubshed materas where the nsttuton hods the physca matera
(such as etters and dares) but cannot practcaby dentfy who woud be
entted to exercse copyrght. Much of ths unpubshed matera s of
sgnfcant cutura and hstorc vaue and the nsttutons hodng t need to
be abe to use t for purposes ncudng deveopng, mantanng, exhbtng
and promotng ther coectons. Deveopments n dgta technoogy and
the nternet have vasty expanded the avenues avaabe to cutura and
archva nsttutons for makng ther coectons accessbe to the
communty.
Probems arse partcuary n reaton to the nsttutons rghts to dgtze
and pubsh hstorca materas that have not prevousy been pubshed
(n the sense that copes of the tems have not been dstrbuted to the
pubc). For most unpubshed works whether they take the form of
terary, dramatc or musca works, sound recordngs or cnematograph
fms - copyrght endures and the countdown to expry does not begn unt
pubcaton or another reevant act occurs. Where the copyrght materas
160
See generay, S Rcketson and C Creswe, 'he Law of Intellectual Property/ Copyright,
0esigns and Confidential Information, Thomson Reuters, at para 6.35
51
have been deposted nto or acqured by a cutura or archva nsttuton,
unaccompaned by an assgnment of copyrght or an express cence, and
the copyrght owner s unknown or untraceabe, the works are "orphaned".
Wthout an assgnment of copyrght or a cence from the copyrght owner,
the nsttuton has physca custody of the ob|ect/s but acks expct
authorsaton to pubsh the unpubshed work (or to pubcy perform,
broadcast or market records). The consequence s a conundrum: a
quarantned copyrght nterest, whch cannot be exercsed by the
custodan of the tangbe ob|ect, but wthout any dentfabe person
authorsed to perform one of the acts whch trggers the countdown to
expraton of the copyrght term.
The probems assocated wth unpubshed materas and orphan works
have caused dffcutes for custodans of pubc coectons and need to be
actvey addressed to remove obstaces to the dstrbuton of coecton
matera n dgta form onne.
8eaning of Kp#-"ishL
Snce pubcaton s an act that trggers the countdown to expraton of the
copyrght term, t s mportant to carefuy consder the knds of acts that
w amount to frst pubcaton.
161
Recent |udca consderaton of the
meanng of "pubsh" under the Copyright Act 1968 provdes grounds for
revstng the queston of when a copyrght work can be sad to have been
"pubshed".
In Copyright Agency Ltd v New South Wales |2007| FCAFC 80 members of
the Fu Court of the Federa Court (Emmett |, wth whom Lndgren and
Fnkesten || agreed) consdered when survey pans coud be regarded as
beng frst pubshed. It had been contended for New South Waes that
survey pans were frst pubshed by the State when, mmedatey after
they were regstered, the Regstrar-Genera of Land Ttes made copes of
the pan avaabe to members of the pubc, government authortes, oca
councs and other partes. The Court sad that, whe those acts dd
consttute pubcaton of survey pans, they were not the frst pubcaton.
On the facts of the case, the Court hed that the survey pans were
pubshed pror to the pont of regstraton by the Land Ttes Offce. Each
pan was hed to have been frst pubshed when t was provded by the
surveyor to the owner of the and for sgnature, or when t was provded to
the oca muncpa counc for a subdvson certfcate.
162

Appyng the reasonng of the Fu Federa Court n CAL v NSW, t s
arguabe that at east some of the materas hed n cutura and coectng
nsttutons may have been pubshed, even though mutpe copes of the
matera have not been dstrbuted to the genera pubc. CAL v NSW
ndcates that the concept of pubcaton makng pubc that whch has
not prevousy been made pubc n that |ursdcton
163
may extend to the
handng over of materas to a pubc authorty (ncudng archves,
museums etc.) by persons wth authorty to do so, such that the matera
s avaabe for nspecton or vewng by members of the pubc. If ths s
the case, t woud go some way to reducng the probem of "perpetua
161
See the approach taken n the Copyright Act 1994 (NZ), s 22(3), (4) whch uses the
concept of "frst made avaabe to the pubc by an authorsed act".
162
Copyright Agency Ltd v New South Wales |2007| FCAFC 80 at |148| per Emmett |.
163
See Avel Pty Ltd v .ulticoin Amusements Pty Ltd (1990) 171 CLR 88 at p 93.
52
copyrght" orphan works for whch copyrght potentay endures for
centures because there has never been an act of pubcaton.
164

5vercoming the pro-"em of Kperpet#a"L copyright
The probem of "perpetua" copyrght n Austraa stems argey from the
codfcaton and extenson of copyrght protecton n the eary 20
th
century.
Durng the second haf of the 19
th
century, most of the Austraan
coones
165
enacted copyrght statutes that ncorporated defntons and
concepts from the Brtsh Copyright Act 1842. These coona enactments
afforded copyrght protecton to books, dramatc and musca works,
ectures, and works of fne art (pantngs, drawngs, scupture, engravngs
and photographs).
166
Under headngs that ncuded the word "terary",
these statutes provded copyrght protecton to "books", whch were
defned as meanng "every voume, part or dvson of a voume,
newspaper, pamphet, sheet of etter-press, sheet of musc, map, chart, or
pan, separatey pubshed".
167
From the defnton of "books" and other
provsons n these Acts t seems that statutory copyrght protecton
apped to materas of the knd typcay prnted and dstrbuted by a
pubsher or prnter. The coona Acts aso requred copes of pubshed
books to be devered to the State Lbrary and estabshed a Regster of
copyrght n books; faure to regster a book dd not affect copyrght
athough proceedngs to enforce copyrght coud not be commenced unt
the book was entered on the Regster.
168

The term of copyrght n books under these coona Acts was seven years
from the death of the author or 42 years from the date of frst pubcaton
of the book, whchever was the onger perod. Where a book had not been
pubshed at the death of the author, copyrght woud endure for 42 years
from the date of frst pubcaton. In the case of posthumous pubcaton,
copyrght beonged to the owner of the authors manuscrpt from whch
the book was pubshed and the authors assgns.
169

Whe the coona copyrght statutes dd not expressy afford copyrght
protecton to materas such as etters, dares and househod or busness
records whch woud not ordnary be prnted by pubshers, t appears to
have been accepted by the md-19
th
century that, where such materas
were coected nto voumes prnted by pubshers, they woud aso attract
copyrght: see ?olsom v .arsh (1841).
170
The nature of rghts that exsted
164
Copyright Act 1968, ss 33(3), (5), 34, 180, 181.
165
Other than Tasmana.
166
See B Atknson, 'he 'rue 6istory of Copyright/ 'he Australian 2*perience 789:";99:,
Sydney Unversty Press, p 14.
167
See: South Austraa: Copyright Act 1878, ss 2 and 13; Vctora: Copyright Act 1890, ss 3
and 15; Western Austraa: Copyright Act 1895, ss 4 and 5.
168
South Austraa: Copyright Act 1878, ss 15 19, 27; Vctora: Copyright Act 1890, ss 17 -
20 and 29; Western Austraa: Copyright Act 1895, ss 7 13.
169
South Austraa: Copyright Act 1878, s 13; Vctora: Copyright Act 1890, s 15; Western
Austraa: Copyright Act 1895, s 5.
170
?olsom vB .arsh, 9 F.Cas. 342, 6 Hunt Mer. Mag. 175, 2 Story 100, No. 4901, Case
No.4,901, 2 Story, 100; 6 Hunt, Mer. Mag. 175 (Crcut Court, D. Massachusetts, Crcut
|ustce Story, Oct. Term, 1841).
53
n unpubshed materas s not cear
171
, athough as Rcketson and
Creswe expan, as a consequence of cases decded n the 18
th
century
172
:
It soon became frmy estabshed that there was a cear |ursdcton for a
court of equty to restran the unauthorsed use or pubcaton of
unpubshed works and ths remaned extant unt aboshed n the
Copyright Act 7877 (UK). Athough generay referred to as a "common aw
rght of property n unpubshed works", there was nothng "common aw"
about t, as the reef sought was purey equtabe.
173
The frst Austraan Copyright Act post-federaton, enacted n 1905, carred
forward the practce of affordng copyrght protecton to books, rather than
terary works. Lke the coona Acts, t requred regstraton of books
before an acton for copyrght nfrngement coud be nsttuted.
174

However, sgnfcant changes were enacted n the UK Copyright Act 1911,
whch was adopted n Austraa by the Copyright Act 1912. Ths Act
codfed the aw of copyrght n reaton to a pubshed and unpubshed
terary, dramatc, artstc and musca works and n sound recordngs
175
and aboshed the so-caed "common aw" copyrght n unpubshed
works.
176
Protecton for "books" was repaced wth protecton for "terary
171
For comment on ths debate, see B Atknson, 'he 'rue 6istory of Copyright/ 'he
Australian 2*perience 789:";99:, at pp 31-41, and B F Ftzgerad and B Atknson, (2008)
'hird Party Copyright and Pulic Information InfrastructureG+egistries/ 6ow much copyright
ta* must the pulic pay>, n Ftzgerad, Bran F. and Perry, M., Eds. =nowledge Policy for
the ;7st Century (2008), Irwn Law, pp 21 22, at footnote 75 (avaabe at
http://eprnts.qut.edu.au/13627/):
In the ast 15 years, numerous schoars, ncudng Rose, Feather, Benty and
Sherman and recenty Deazey, have examned the ong-runnng debate n the
Unted Kngdom over perpetua or common aw copyrght: |. Feather, Pulishing,
Piracy and Politics/ An 6istorical Study of Copyright in $ritain(1994) Manse,
London, R. Deazey, )n 'he )rigin of 'he +ight to Copy (2004) Hart Pubshng,
Oxford; M. Rose, Authors and )wners (1993) Harvard Unversty Press, Cambrdge
MA; B. Sherman and L Benty, 'he .a,ing of .odern Intellectual Property Law
(1999) Cambrdge Unversty Press, Cambrdge. See aso C. Seve, Literary
Copyright +eform in 2arly 1ictorian 2ngland/ the ?raming of the 7@H; Copyright
Act (1999) Cambrdge Unversty Press, Cambrdge, and the recent prcs of the
ssues by Atknson, 'he 'rue 6istory of Copyright, 31-37. In 0onaldson v $ec,ett
(1774) 98 Eng Rep 257, the House of Lords decared that Statute of Anne 7F98
extngushed so-caed common aw copyrght seemngy puttng an end (n aw) to
the argument for perpetua copyrght (at east n reaton to pubshed matera;
unpubshed matera beng deat wth excusvey by statute snce the Brtsh
Copyright Act 7877 and the Austraan Copyright Act 787;): for a recent and
detaed anayss of the dfferent readngs of the |udgements, see R. Deazey, )n
'he )rigin of 'he +ight to Copy (2004) Hart Pubshng, Oxford. The famous satrc
speech of Lord Macauay n the House of Commons n debate over the 1842
Copyrght B destroyed forever (or so t seemed) the contnung campagn for
perpetua copyrght. In 1905 n debate over the Austraan Copyrght B, Sr |osah
Symon, a eadng Senator, strongy endorsed Macauays arguments. See aso
-efferys vB $oosey (1854) 4 HLC 815 (10 ER 681); !rain Pool of WA v
Commonwealth |2000| HCA 14 per Krby | at |133| f/n 218.
172
We v +ose (1732), cited in .ac,lin v +ichardson (1770) Amb 695; 27 ER 451; Pope v
Curl (1741) 2 Ack 341; 26 ER 608. See S Rcketson and C Creswe, 'he Law of Intellectual
Property/ Copyright, 0esigns and Confidential Information, at para 3.155,
173
Rcketson and Creswe, bd.
174
Copyright Act 1905 (Cth), s 74(1).
175
Copyright Act 1911 (UK), s 1(1)
176
Copyright Act 1911 (UK), s 31 stated:
"No person sha be entted to copyrght or any smar rght n any terary, dramatc,
musca, or artstc work, whether pubshed or unpubshed, otherwse than under and n
accordance wth the provsons of ths Act, or of any other statutory enactment for the tme
54
works", defned to ncude "maps, charts, pans, tabes and
compatons"
177
and, whe copes of books had to be deposted wth the
Brtsh Museum, the requrement to regster and consequences for faure
to do so no onger apped. Importanty, the 1911 Act extended copyrght
protecton for unpubshed terary, dramatc and musca works and
engravngs. If, at the death of the author, a terary work had not been
pubshed, a dramatc or musca work had not been performed n pubc,
or a ecture had not been devered to the pubc, copyrght contnued for a
term of 50 years from the tme of pubcaton, performance or devery n
pubc.
178

The approach of aowng copyrght to run unt the occurrence of a
catayzng event (eg pubcaton, pubc performance or broadcast) was
carred through nto the Copyright Act 1968 (Cth) whch aso further
extended the categores of protected materas. Where, at the tme of the
authors death (or the death of the ast survvng author), terary works
(except computer programs), dramatc and musca works have not been
pubshed, performed n pubc or broadcast, or records of whch have not
been offered for sae to the pubc, copyrght contnues to subsst unt 70
years after the end of the caendar year n whch the frst of those events
occurs.
179
In the case of an anonymous or pseudonymous work, copyrght
contnues unt 70 years from the end of the caendar year n whch the
work s frst pubshed (uness the dentty of the author s ascertaned
before the end of that perod).
180
However, the Copyright Act 1968 aso
ntroduced extended copyrght terms that are reated not to the fe of the
author, but to the tme of pubcaton. Copyrght n sound recordngs and
cnematograph fms asts for 70 years from the end of the year n whch
they were frst pubshed;
181
f unpubshed, copyrght contnues
ndefntey.
For Crown copyrght terary, dramatc and musca works, engravngs,
photographs, sound recordngs and cnematograph fms, copyrght
contnues unt 50 years from the end of the year n whch the work s frst
pubshed;
182
copyrght n an unpubshed terary, dramatc or musca
work contnues for as ong as the work s unpubshed.
183
Crown copyrght
n artstc works (other than engravngs and photographs) asts for 50
years from the end of the year n whch the work was made.
184
There are numerous provsons n the Copyright Act 1968 that create
royaty-free exceptons permttng specfc deangs wth cutura materas
by archves, gaeres, museums, brares and other nsttutons.
185
Exceptons authorsng the copyng of terary, dramatc, musca and
beng n force." See S Rcketson and M Rchardson, Intellectual Property/ Cases, .aterials
and Commentary, 3
rd
ed, LexsNexs Butterworths, 2005 at pp 60-66.
177
Copyright Act 1911 (UK), s 35.
178
Copyright Act 1911 (UK), s 17(1).
179
See Copyright Act 1968, ss 33(3), 78, 80 and 81. Secton s 33(5) reates to engravngs: f
engravngs are unpubshed at the tme of the authors death, copyrght asts unt 70 years
after frst pubcaton.
180
Copyright Act 1968, ss 34, 78 and 79.
181
Copyright Act 1968, ss 93, 94 and 221.
182
Copyright Act 1968, ss 180(1))b) and (3), 181.
183
Copyright Act 1968, s 180(1) (a).
184
Copyright Act 1968, s 180(2).
185
See Copyright Act 1968, s 10(10 and (4) for the defnton of "archves".
55
artstc works are set out n ss 49-53; copyng and communcatng sound
recordngs and fms are n ss 110A-110BA; and makng of preservaton
copes of sgnfcant pubshed edtons by key cutura nsttutons n s
112AA. Whe these provsons have been revewed
186
and amended from
tme to tme, probems such as the potentay unmted duraton of
copyrght n unpubshed works and the nabty of cutura and coectng
nsttutons to dea wth orphan works have perssted.
+o"#tions in other j#risictions
The probems that have been rased n the context of the Government 2.0
Task Forces nqury have been recognsed and addressed n other
|ursdctons, where copyrght statutes now estabsh fnte mts to the
duraton of copyrght for most works.
United ingdo!
The need to ensure that copyrght n unpubshed works does not extend
ndefntey was recognzed and addressed n the Copyright, 0esigns and
Patents Act 1988 (CDPA). The dsparty between the perod of protecton
for pubshed and unpubshed works n exstence at the date the CDPA
came nto force (1 August 1989) w be removed, over a 50 year transton
perod. For works produced after 1 August 1989, t s no onger possbe for
copyrght to potentay ast perpetuay. As we as phasng out the
potenta for copyrght to ast perpetuay n unpubshed works, the CDPA
essens the probem of orphan works by provdng that t s ony for works
of unknown authorshp that copyrght does not begn to expre unt the
work s made avaabe to the pubc. Schedue 1 of the CDPA 1988
contans transtona provsons
187
reatng to the duraton of copyrght n
"exstng works" made before the commencement of the CDPA (1 August
1989).
188
|see $ppeni2 =|.
From the enactment of the 1911 Copyright Act, UK aw had permtted the
term of copyrght n unpubshed terary, dramatc and musca works and
engravngs to contnue to run whe the works remaned unpubshed, had
not been pubcy performed or, (n the case of a ecture) had not been
devered. Once one of these acts occurred, the term of copyrght (50
years) began to expre.
189
The 1911 Act expressy stated that "copyrght
sha subsst t pubcaton, or performance or devery n pubc,
186
See CLRC, Crown Copyright, 2005 at paras 4.60-4.65 at pp 51-52, and CLRC,
Simplification of the Copyright Act 78I@/ Part 7 " 2*ceptions to the 2*clusive +ights of
Copyright )wners, 1999, Chapter 7, "Copyng by Lbrares and Archves" at pp 87-128,
avaabe at
http://www.crc.gov.au/www/agd/agd.nsf/Page/Copyrght_CopyrghtLawRevewCommttee_
CLRCReports_SmpfcatonoftheCopyrghtAct1968
187
These transtona provsons n Schedue 1 are made n accordance wth s 170 of the
Copyright, 0esigns and Patents Act 1988.
188
"Exstng work" s defned n s 1(3) of Schedue 1 as meanng: "works made before
commencement; and for ths purpose a work of whch the makng extended over a perod
sha be taken to have been made when ts makng was competed". Secton 1(2) of the
Schedue states that references "n ths Schedue to "commencement", wthout more, are
to the date on whch the new copyrght provsons come nto force".
189
See Copyright Act 1911, s 17 ("Posthumous").
56
whchever may frst happen, and for a term of ffty years thereafter".
190
The approach adopted n the 1911 Act was foowed n the Copyright Act
1956 (UK).
191

Under the CDPA, copyrght n exstng anonymous or pseudonymous
terary, dramatc, musca and artstc works (other than photographs)
whch are unpubshed contnues unt 50 years from the end of the year n
whch the provsons of the CDPA came nto force (that s, 31 December
2039).
192
Smary, copyrght contnues unt 31 December 2039 for
unpubshed works, the author of whch has ded, ncudng unpubshed
terary, dramatc and musca works and engravngs
193
, and unpubshed
photographs taken on or after 1 |une 1957. Perpetua copyrght conferred
on unverstes and coeges by the Copyright Act 1775 w aso expre at
the end of 2039.
194
For new works, made after the CDPA came nto effect, the possbty of
copyrght contnung ndefntey can now ony arse where the dentty of
the author of the work s unknown, and not where the authors dentty s
known but the work has not been pubshed, pubcy performed etc. The
basc rue on duraton s that copyrght n terary, dramatc, musca and
artstc works expres after 50 years from the end of the caendar year n
whch the author des.
195
For computer-generated works, sound
recordngs, fms, broadcasts and cabe programs, copyrght expres 50
years from the end of the caendar year n whch the work s made.
196
Provded the dentty of the author s known, t s rreevant whether or not
the work has been pubshed (or, n the terms of the CDPA, "made
avaabe to the pubc"). If the author s unknown, copyrght contnues
unt 50 years from the end of the caendar year n whch the work s frst
made avaabe to the pubc, uness the authors dentty s ascertaned
earer.
197
The basc rue for duraton of Crown copyrght terary, dramatc, musca
and artstc works s that t w ast for 125 years from the end of the
caendar year n whch the work was made.
198
However, for unpubshed
Crown copyrght terary, dramatc, musca and artstc works n exstence
190
Copyright Act 1911, s 17(1)
191
See Copyright Act 1956, s 2(3) whch provded that copyrght contnued unt 50 years
from the end of the caendar year n whch the work was pubshed, pubcy performed,
records of the work were offered for sae to the pubc, or t was broadcast, f none of those
acts had occurred at the tme of the authors death.
192
Schedue 1, s 12(3). Note that ths s sub|ect to the provso that f, durng that perod,
the work s "frst made avaabe to the pubc" wthn the meanng of s 12(2) of the CDPA
(duraton of copyrght n works of known authorshp), copyrght expres n accordance wth
that provson, or the dentty of the author becomes known before that date, n whch case
s 12(1) of the CDPA appes.
193
Note that ths secton appes where, at the tme of the authors death none of the
foowng acts has occurred: pubcaton; pubc performance; offer for sae to the pubc of
records of the work; broadcastng of the work: Schedue 1, s 12(4). See aso Schedue 1, s
12(5) whch reates to unpubshed sound recordngs made on or after 1 |une 1957 and
certan fms.
194
Schedue 1, s 13.
195
Copyright, 0esigns and Patents Act 1988 (UK), s 12(1).
196
Copyright, 0esigns and Patents Act 1988 (UK), ss 12(3), 13, 14.
197
Copyright, 0esigns and Patents Act 1988 (UK), s 12(2).
198
Copyright, 0esigns and Patents Act 1988 (UK), s 163(3)(a). A "Crown copyrght" work s
one made by the Crown, or an offcer or servant of the Crown n the course of ther
empoyment: s 163(1).
57
at the tme the CDPA came nto force,
199
copyrght expres on 31
December 2039 or 125 years after the work was made, whchever s the
ater.
200
If a Crown copyrght work s pubshed commercay wthn 75
years after t was made, copyrght asts for 50 years from the end of the
year n whch t was pubshed.
201
Copyrght n Acts of Parament expres
50 years from the end of the caendar year n whch Roya Assent was
gven
202
and Paramentary copyrght materas are protected for 50 years
from the end of the caendar year n whch they were made.
203

New "ealand
Lke the Copyright, 0esigns and Patents Act 1988 (UK), the Copyright Act
1994 (NZ) contans sunset provsons for copyrght n unpubshed works.
As wth the UK egsaton, the NZ Act removes the possbty of potentay
perpetua copyrght n new works on the bass that they have not been
pubshed. Instead, the ony ground on whch copyrght can contnue to
run s that the dentty of the author s unknown.
For terary, dramatc, musca and artstc works, copyrght expres 50
years from the end of the caendar year of the authors death
204
Where the
work s of unknown authorshp, copyrght expres 50 years from the end of
the caendar year n whch the work s frst made avaabe to the pubc by
an authorsed act, such as by performance n pubc or communcaton to
the pubc n the case of a terary, dramatc or musca work, or exhbton
n pubc n the case of an artstc work.
205
A terary, dramatc, musca or
artstc work (other than a photograph) of unknown authorshp whch was
unpubshed at the commencement of the Act w expre after 50 years,
uness the work s made avaabe to the pubc durng that perod, n
whch case the usua rue appes.
206

For sound recordngs and fms, copyrght asts for 50 years from the end
of the caendar year n whch the work s made or, f t s made avaabe to
the pubc before the end of that perod, 50 years from when t was made
avaabe, whchever s the ater.
207
For Crown copyrght works, copyrght
expres 100 years from the end of the caendar year n whch the work was
made, or, for the typographca arrangement of a pubshed edton, 25
years after t was made.
208
United States
Before the Copyright Act 1976 came nto force on 1 |anuary 1978,
pubcaton was the key to obtanng copyrght protecton. Under the
Copyright Act 1909, copyrght was generay secured by the act of
199
1 August 1989.
200
Copyright, 0esigns and Patents Act 1988 (UK), Schedue 1, s 40(3). Ths rue aso appes
to unpubshed engravngs, unpubshed photographs and fms: Schedue 40, s 40(4), (5).
201
Copyright, 0esigns and Patents Act 1988 (UK), s 163(3)(b.)
202
Copyright, 0esigns and Patents Act 1988 (UK), s 164.
203
Copyright, 0esigns and Patents Act 1988 (UK), s 165.
204
Copyright Act 1994 (NZ), s 22(1). Note that copyrght n computer-generated works
expres 50 years from the end of the caendar year n whch the work s made: s 22(2).
205
Copyright Act 1994 (NZ), s 22(3), (4).
206
Copyright Act 1994 (NZ), Schedue 1, s 17(2); and s 22(3), (4).
207
Copyright Act 1994 (NZ), s 23.
208
Copyright Act 1994 (NZ), s 26(3).
58
pubcaton
209
wth notce of copyrght, provdng a the other reevant
statutory condtons were satsfed. The Copyright Act 1976 extended
federa copyrght protecton to unpubshed works for the frst tme. The
duraton of protecton for unpubshed works created before 1 |anuary
1978 s cacuated n the same way as for works created after the
Copyright Act 1976 took effect, for exampe, the fe of the author pus 70
years.
K+pecia" casesL of permitte f"e2i-"e ea"ing A the i"emma
of s 200$=
Secton 200AB was nserted nto the Copyright Act 1968 by the Copyright
Amendment Act 2006. It was ntended to be a fexbe excepton to enabe
copyrght matera to be used for certan socay usefu purposes and to
provde some of the fexbty afforded by the far use doctrne n US
copyrght aw.
210
Whe t s cear from the Expanatory Memoranda for the
Copyright Amendment $ill ;99I (whch nserted s 200AB nto the
Copyright Act 1968) that the provson was meant to provde room to
operate for bodes ncudng brares, archves, gaeres and museums
211
,
n practce ts operaton s regarded as uncertan
212
, wth the consequence
that there has been tte reance on t.
Secton 200AB aows for copyrght works and sub|ect matter other than
works to be used n certan crcumstances, provded the use amounts to a
speca case, does not confct wth a norma expotaton of the work or
other sub|ect matter, and does not unreasonaby pre|udce the egtmate
nterests of the copyrght owner.
213
A body admnsterng a brary or
209
Copyright Act 1976 defnes pubcaton as "the dstrbuton of copes or phonorecords of
a work to the pubc by sae or other transfer of ownershp, or by renta, ease or endng..."
210
Expanatory Memorandum for the Copyright Amendment $ill ;99I, p109, avaabe at
http://www.aust.edu.au/au/egs/cth/b_em/cab2006223/memo_0.htm; Mr. Ruddock,
Second Readng Speech for the Copyright Amendment $ill ;99I, House of Representatves,
Thursday 19 October 2006, Hansard records p2.
211
The defnton of "archves" n s 10(1) of the Copyright Act s extended by s 10(4) to
ncude not-for-proft museums and gaeres.
212
The uncertanty stems from the ncorporaton of the three-step from Artce 9(2) of the
$erne Convention for the Protection of Literary and Artistic Wor,s and Artce 13 of the
Agreement on 'rade"+elated Aspects of Intellectual Property +ights (TRIPS) nto s 200AB
tsef. The three-step test s generay understood to provde egsatve gudance n draftng
exceptons, not as a restrcton to be drecty adopted nto egsaton: see Ncoas Suzor,
Pau Harpur and Dan Thampapa, Dgta copyrght and dsabty dscrmnaton: From
brae books to bookshare (2008) 13 .edia and Arts Law +eview 1 at 8. It has been
argued that the ncorporaton of the three-step test nto s 200AB creates confuson and
uncertanty n practce, because each partcuar appcaton of s 200AB w requre an
assessment of whether that appcaton s a "speca case". Ths s dffcut where there s
no gudance about what s key to consttute a "speca case". It has been further argued
that ths creates a "chng effect" that where the aw s uncertan, rsk-averse bodes
tend to act conservatvey and not rey on the excepton, rather than expose themseves to
potenta ega sut. Ths undermnes the ob|ectves of s 200AB to create a fexbe deang
excepton wthn copyrght aw. See The Austraan Labor Party n ther Suppementary
Report to the Senate Standng Commttee on Lega and Consttutona Affars, as reported
n the Senate Standng Commttee on Lega and Consttutona Affars, Copyrght
Amendment B 2006 |Provsons|, November 2006, p 47 |1.13|; see aso the Austraan
Broadcastng Corporaton (ABC), Submsson to the Standng Commttee on Lega and
Consttutona Affars, Copyrght Amendment B 2006: Exceptons and Other Dgta
Agenda Revew Measures (October 2006).
213
Copyright Act 78I@ (Cth), 200AB (1).
59
archves may make use of a copyrght work or other sub|ect matter for the
purpose of mantanng or operatng the brary or archves, ncudng
toprovde servces of a knd usuay provded by a brary or archves.
214
The use must not be made party for the purpose of the body obtanng a
commerca advantage or proft.
215
The operaton of s 200AB s excuded f,
because of another provson of the Copyright Act, the use does not
nfrnge copyrght or woud not be an nfrngement f the condtons or
requrements of that other provson were met.
216
The Expanatory Memorandum for the Copyright Amendment $ill ;99I
states that, n consderng whether a use confcts wth the norma
expotaton of a work, regard shoud be had to whether the use "coses off
ways that copyrght hoders normay extract economc vaue from
copyrght n the Austraan market or enters nto economc competton
wth those ways, thereby deprvng the copyrght hoder of sgnfcant or
tangbe commerca gans".
217
It s arguabe that use by a cutura nsttuton n dgtzng and makng a
copyrght work avaabe to ts patrons woud fa wthn the scope of s
200AB for certan materas, provded the nsttuton s not dervng a proft
or commerca advantage from that use. In partcuar, ths woud cover od
materas whch have been donated to the nsttuton, have ngered n the
nsttutons coectons for years and for whch t s uncear whether the
matera s n fact protected by copyrght and f so, who owns copyrght
and how the copyrght owner can be contacted. Where the copyrght
owner s unknown, cannot be found, or s seemngy unnterested n the
copyrght matera, t s unkey that a non-proft use by a cutura
nsttuton woud confct wth norma expotaton of the work such that t
woud deprve the copyrght hoder of tangbe commerca gans. The
makng avaabe n dgta form of an archves coecton s an mportant
servce that can be provded by an archve, though one that s unkey to
reap commerca returns for a copyrght hoder. In these crcumstances,
and takng nto account the ntended broad ambt of s 200AB, t woud
seem that use by a cutura nsttuton n makng ts coecton (especay
od works) eectroncay avaabe woud be key to consttute a "speca
case" under s 200AB.
The scope of appcaton of s 200AB has been vewed narrowy by cutura
nsttutons, coectng socetes, users and commentators. Ths s argey
due to the mtaton expressed n s 200AB(6) that the secton w not
appy f, because of another provson of the Copyright Act, the use s not
an nfrngement of copyrght or the use woud not be an nfrngement of
copyrght f the condtons or requrements of that other provson were
214
Copyright Act 78I@ (Cth), 200AB (2). "Use" ncudes any act that woud nfrnge
copyrght: Copyright Act 78I@ (Cth), 200AB (7). "Archves" s defned n s10 (4) to ncude
where a coecton of documents or other matera of hstorca sgnfcance or pubc
nterest that s n the custody of a body, whether ncorporated or unncorporated, s beng
mantaned by the body for the purpose of conservng and preservng those documents or
other matera and the body does not mantan and operate the coecton for the purpose
of dervng a proft. Thus, the term "archves" as used n the Copyright Act s key to cover
a broad range of cutura nsttutons, ncudng not for proft gaeres and museums.
215
Copyright Act 78I@ (Cth), 200AB (2). Cost recovery s deemed not to be a commerca
advantage or proft: Copyright Act 78I@ (Cth), 200AB (6A).
216
Copyright Act 78I@ (Cth), 200AB (6).
217
Expanatory Memorandum for the Copyright Amendment $ill ;99I, p 109-110, avaabe
at . http://www.aust.edu.au/au/egs/cth/b_em/cab2006223/memo_0.htm
60
met. The exampes provded to ustrate the operaton of s 200AB(6)
218
ndcate that the secton cannot be reed upon f the act n queston woud
be authorsed by the operaton of an excepton that provdes a compete
defence (eg s 200(1)) or a statutory cence whch permts the act, sub|ect
to payment of remuneraton to a coectng socety (eg s 135ZP(2)).
Exampe 2 ndcates that s 200AB does not appy f a statutory cence
woud cover the use of the copyrght work:
A body admnsterng an nsttuton assstng persons wth a prnt dsabty
makes a Brae verson of a pubshed terary work. Under s 135ZP(2),
makng such a verson does not nfrnge copyrght n the work f certan
condtons (reatng to remuneraton etc.) are met, so ths secton does not
appy.
(Note that statutory cences and an obgaton to pay equtabe
remuneraton are not engaged f, under other provsons of the Copyright
Act 1968, the acts woud not consttute an nfrngement because of the
operaton of a free use excepton (eg far deang, ss 40 42)).
219
In the ght of the nterpretaton of "pubcaton" by the Fu Federa Court
n CAL v NSW, consderaton shoud be gven to egsatvey carfyng
what acts consttute pubcaton and the duraton of copyrght for works
hed n cutura and archva nsttutons. Addtonay, the poston of
cutura and archva nsttutons coud be made more certan by the
enactment of pubc admnstraton exceptons smar to those appyng n
the Unted Kngdom and New Zeaand.
Nevertheess, there are crcumstances where acts w not be covered by
specfc exceptons n the Copyright Act 1968 and w fa outsde the
operaton of the s 183 statutory cence or other statutory cences. Whe
the operaton of s 200AB s sub|ect to many restrctons, there s an
mportant abet confned area of actvty towards whch t was
targeted. The Suppementary Expanatory Memorandum to the Copyright
Amendment $ill 2006 suggested that s 200AB coud be reed upon to free
up access to "orphan" works n cases where the copyrght owner s
unknown or cannot be contacted:
The ntenton s that s 200AB provde a fexbe excepton to enabe
copyrght matera to be used for certan socay usefu purposes whe
remanng consstent wth Austraas obgatons under nternatona
copyrght treates. Ths provson mght be determned by a court, for
exampe, to aow a brary or archve to make a use of a work where the
copyrght owners permsson cannot be obtaned because he or she
cannot be dentfed or contacted.
220
Indeed, n the Unted Kngdom, the Lbrares and Archves Copyrght
Aance (LACA) n ts response to the European Commssons Green Paper
218
S 200AB(6) s prefaced by the statement: "Ths secton does not appy f under another
provson the use does not, or mght not, nfrnge copyrght."
219
Copyright Agency Limited v State of New South Wales |2008| HCA 35 at para |11|
220
Suppementary Expanatory Memorandum, Copyright Amendment $ill 2006, para |52|.
See aso: Austraan Government Attorney Generas Department, "Use of copyrght
matera for certan speca purposes" (factsheet), avaabe at
http://www.ag.gov.au/www/agd/agd.nsf/ADocs/74D4B30A63F5EDD3CA2572830080A60E?
OpenDocument.
61
on Copyrght n the Knowedge Economy
221
suggested, as a possbe
souton to the orphan works probem, an excepton to copyrght
nfrngement that aows brares and archves to put ther materas on
pubcy accessbe onne networks, ncudng the nternet, provded that
the use fas wthn the parameters of the Three Step Test.
222
The LACA
argued that most pubshers have no commerca nterest n dgtsng
orphan works and unpubshed potenta archva matera and that
brares and archves cannot safey rey on pubshers and producers to
dever ths matera to the pubc.
223
The LACA ponted out that pubshers
do not contnue forever they may go out of busness, renderng orphan
any works n whch they have rghts, or they may be taken over by
companes wth tte dea of what rghts they have acqured through
mergers.
224
For these reasons, the LACA argued that there was a need for
an excepton that went beyond the present EU aw
225
(whch permts
Member States to enact exceptons or mtatons to the reproducton rght
n respect of specfc acts of reproducton made by pubcy accessbe
brares, educatona estabshments or museums, or by archves, whch
are not for drect or ndrect economc or commerca advantage).
226
What
the LACA essentay descrbed was an excepton smar to that provded
by s 200AB. The UK Government dd not seem adverse to ths suggeston,
statng n ts response to the Green Paper:
In other cases, such as unpubshed, or out-of-prnt (but st n copyrght)
works, whch are no onger commercay avaabe, and for whch no
commerca expotaton seems key, there may be a case for exporng
whether and how brares and archves coud best deveop onne access
to ther coectons, takng nto account the requrements of the Berne 3-
step test.
227
Cutura nsttutons n Austraa appear to have refraned from reyng on s
200AB for these or smar actvtes because of uncertantes about the
meanng of the terms "speca case", "norma expotaton" and
"unreasonaby pre|udce the egtmate nterests of the copyrght owner"
and concerns about fees payabe under a statutory cence. Submssons to
the Government 2.0 Taskforce and consutatons ndcate that cutura
nsttutons requre cear gudenes about the knds of use of materas
woud amount to a "speca case" for the purposes of s 200AB.
To provde the GLAM sector wth ega certanty to functon effectvey n
the dgta envronment, t s necessary to fuy mpement s 200AB
221
Green Paper, Copyrght n the Knowedge Economy (COM (2008) 466/3, 16 |uy 2009),
see further Stephen Saxby, Natona archves and records the ega and pocy
consderatons for the UK IntB -B Private Law, 1olB A, NosB J, ;979, 49-54.
222
European Commsson Green Paper on Copyrght n the Knowedge Economy COM
(2008) 466/3 Response by LACA: the Lbrares and Archves Copyrght Aance; see
further Stephen Saxby, Natona archves and records the ega and pocy consderatons
for the UK IntB -B Private Law, 1olB A, NosB J, ;979, 52-54.
223
Ibd.
224
Ibd.
225
Artce 5(2)(c) of the Drectve 2001/29/EC on the harmonsaton of certan aspects of
copyrght and reated rghts n the nformaton socety.
226
See further Stephen Saxby, Natona archves and records the ega and pocy
consderatons for the UK IntB -B Private Law, 1olB A, NosB J, ;979, 50. (forthcomng).
227
UK Government response to the European Commssons Green Paper Copyrght n the
Knowedge Economy; see further Stephen Saxby, Natona archves and records the
ega and pocy consderatons for the UK IntB -B Private Law, 1olB A, NosB J, ;979, 53-54.
62
through the deveopment of gudenes and case studes about "speca
cases" as envsaged by s 200AB. The case studes shoud dentfy the
categores of materas and crcumstances that fa wthn the scope of s
200AB, for exampe, od ("unpubshed") etters and dares coud be deat
wth as a speca case under s 200AB. Most archva works produced by
government do not have any economc vaue and n the absence of a
egtmate economc nterest to be respected, there s no reason why the
materas shoud not be freey avaabe.
228
Recommenation 3 A !nc"#e g#iance on copyright "aw
an practice in igitisation strategies
+trategies for igitisation of thir party materia"s he" -y
archives' m#se#ms' ga""eries an "i-raries sho#" inc"#e
g#iance on management of "ega" rights' to ens#re igitise
materia"s can -e mae avai"a-"e for access' #se an re#se
witho#t inc#rring "ia-i"ity or #n#e e2pense.
Recommenation . A C"arify the meaning of
Kp#-"icationL in ss ?? an ?4 to give certainty to the
#ration of copyright an avoi impractica"ity an set
stat#tory "imits to copyright protection for #np#-"ishe
works
Provie g#iance on the meaning of Kp#-"icationL in ss ??
an ?4 of the Copyright Act, to assist archives' "i-raries an
c#"t#ra" instit#tions in etermining the #ration of copyright
protection for the materia"s they ho". !n "ight of recent
j#icia" consieration of the meaning of Kp#-"icationL in
Copyright Agency Ltd v New South Wales B2000D %C$%C 30
c"arification of the provisions of the Copyright Act 4.@3 is
reH#ire.
M#icia" statements in CAL v NSW s#pport an interpretation
of Kp#-"icationL that inc"#es eposit of materia"s into
archives' "i-raries etc -y persons with a#thority to ea" with
the materia"' s#ch that the materia" is avai"a-"e for access
-y mem-ers of the p#-"ic' witho#t restrictions Eeg for
reasons of nationa" sec#rity' privacy or confientia"ityF that
"imit p#-"ic access.
!f a -roaer interpretation of Kp#-"ishL is s#pporte' for
some materia"s that have not -een p#-"ishe -efore the
a#thor9s eath' Kp#-"icationL may occ#r on eposit into an
archive' "i-rary' etc an copyright wo#" r#n from that point
in time Ess ??E?F' E/F' ?4' 430' 434F. This interpretation may
reH#ire review an c"arification of sections of the Copyright
Act which have -een rafte on the -asis of a m#ch more
restrictive meaning of Kp#-"icationL.
228
See CLRC, Crown Copyright, 2005 at paras 4.63, 4.64 at p 52.
63
The ma2im#m #ration of copyright protection sho#" -e
efine for materia"s which have not -een first p#-"ishe'
p#-"ic"y performe' etc #ring the "ife of the a#thor' so that
copyright oes not r#n on inefinite"y' potentia""y for an
e2ceptiona""y "ong term. The Copyright Act 4.@3 sho#" -e
amene to make it c"ear that copyright cannot en#re
perpet#a""y in #np#-"ishe works. $ moe" for stat#tory
"imits to #np#-"ishe works is provie -y the provisions in
the )nite *ingom9s Copyright, Designs and Patents Act
4.33 an the 7ew Jea"an Copyright Act 4..4' for -oth
e2isting an new works.
Recommenation 40 A ,eve"op g#iance on Kspecia"
casesL an #ses permitte #ner s 200$=
+ection 200$= was enacte to provie archives' m#se#ms'
ga""eries an "i-raries Esometimes referre to as the
KGL$8L sectorF' as we"" as the e#cation an isa-i"ity
services sectors' with room to operate' -eyon the scope of
e2isting e2ceptions.
<owever' there is ins#fficient certainty a-o#t the meaning
of Kspecia" caseL an the operation of s 200$= for c#"t#ra"
an co""ecting instit#tions to re"y on it' "arge"y efeating the
p#rpose of inc"#ing the f"e2i-"e ea"ing e2emption in the
Copyright Act 4.@3. !t is not possi-"e to e2ha#stive"y efine
Kspecia" caseL in s 200$= or to "ist the kins of #ses that
wi"" constit#te a Kspecia" caseL. G#iance on the operation
of s 200$= is reH#ire for c#"t#ra" an co""ecting
instit#tions' inc"#ing ientification of categories of #se
that fa"" within the concept of a Kspecia" caseL.
1sta-"ish projects' in co""a-oration with archives' m#se#ms'
ga""eries an "i-raries' to eve"op practica" g#iance on how
to ientify thir party copyright materia"s that can -e #se
witho#t infringing copyright -eca#se they fa"" within the
Kspecia" caseL e2emption in s 200$=.
64
4. $CC1++ T5 !7%5R8$T!57 $=5)T
C5P;R!G<T L$> $7, PR$CT!C1

If open access to government owned (and hed) matera s to be
encouraged, copyrght n these materas must be managed accordngy.
The Austraan pubc shoud have easy access to nformaton about
copyrght aw generay and, more specfcay, the copyrght condtons
governng partcuar government materas. It s mportant that
government agences are accountabe for the matera they own and that
they mpement measures to ensure that members of the pubc are fuy
nformed about the copyrght condtons appyng to the agencys
materas.
The Commonweath Copyrght Admnstraton (CCA) s the federa
government body (currenty stuated wthn the Commonweath Attorney
Generas Department) responsbe for the management of copyrght n
pubshed materas on behaf of Commonweath agences.
229
The CCA has
two core functons respondng to requests from the pubc to reproduce
Commonweath copyrght matera and provdng admnstratve advce on
the management of copyrght materas to Commonweath agences.
The CLRC noted n ts revew of Crown copyrght that, n practce, the CCA
provdes tte gudance to copyrght users, partcuary when compared
wth the equvaent body n the Unted Kngdom. The CLRC recommended
that the CCA be more proactve n provdng advce and gudance to
copyrght users, ncudng by dssemnatng more matera on ts webste
and provdng a cearer and more consstent approach to copyrght
management.
230
As a reated matter, the CLRC recommended that the
Commonweath Government deveop and mpement comprehensve
nteectua property management gudenes to promote best practce and
assst agences to meet ther responsbtes. Educaton and tranng of
government empoyees was consdered to be a prorty.
231
The Austraan Government Attorney-Generas Department has
formuated a Statement of IP Prncpes to provde a broad pocy
framework for IP management by Austraan Government agences.
232
A
Austraan Government agences whch are sub|ect to the ?inancial
.anagement and Accountaility Act 1997 were requred to compy wth
the requrements on the Statement of IP Prncpes by 1 |uy 2008. The
genera prncpes comprsng the Statement of IP Prncpes ncude:
1. Austraan Government agences are responsbe for managng IP n
ther contro or custody n an effectve, effcent and ethca manner;
2. Each agency shoud have an IP management pocy whch refects ts
ob|ectves and these IP Prncpes |and the IP pocy shoud be
supported by a management pan, strategy and/or gudenes|;
229
http://www.ag.gov.au/cca.
230
See CLRC, Crown Copyright, 2005, Recommendaton 15.
231
See CLRC, Crown Copyright, 2005, Recommendaton 16.
232

http://www.ag.gov.au/www/agd/agd.nsf/Page/Copyrght_CommonweathCopyrghtAdmnstr
aton_StatementofIPPrncpesforAustraanGovernmentAgences.
65
.
4. Impementaton of the IP management pocy shoud be supported by
approprate tranng and resources, ncudng access to expert advce;
5. Agences shoud mantan approprate systems and processes to
dentfy and record IP;
.
8. Agences shoud mantan a fexbe approach n consderng optons for
ownershp, management and use of IP;
.
11. Agences shoud encourage pubc use and easy access to copyrght
matera that has been pubshed for the purpose of:
nformng and advsng the pubc of government pocy and
actvtes;
provdng nformaton that w enabe the pubc and organzatons
to understand ther own obgatons and responsbtes to
Government;
enabng the pubc and organzatons to understand ther
enttements to government assstance;
factatng access to government servces; or
compyng wth pubc accountabty requrements; and
12. Austraan Government agences shoud be mndfu of opportuntes to
share IP for whch they are responsbe wth other agences.
233
The Austraan Government aso commtted to provde gudance and
advce to agences n the form of an IP Manua for Austraan Government
Agences.
234
However, whe the proposed IP Manua was dstrbuted n
draft form for comment to some government agences a fna verson has
not yet been made pubcy avaabe.
The most effcent means of managng government copyrght s unkey to
be va a centra authorty such as the CCA. Rather, copyrght s better
managed at the source by the ndvdua government agences that have
responsbty for the matera n queston. Ths proposton was consdered
n 1992 by the Prces Surveance Authorty (PSA) n ts report on the
prcng pocy of the Austraan Government Pubshng Servce n reaton
to ts pubcatons.
235
The PSA recommended that the government charge
author departments wth the responsbty of admnsterng copyrght
assocated wth ther pubcatons. It was the PSAs vew that the
department whch produces the matera s better equpped to |udge the
crcumstances n whch permsson shoud be gven for free and when t s
approprate to charge.
236
By extenson, t can be argued that the
department w aso be best postoned to determne the scope of the
reuse rghts that shoud be permtted n reaton to partcuar materas.
Ths was, n essence, the poston adopted by the Austraan Bureau of
Statstcs, the Bureau of Meteoroogy and Geoscences Austraa when they
chose to appy Creatve Commons cences to ther matera. The decson
to mpement CC censng s competey consstent wth the Statement of
IP Prncpes, partcuary prncpes 1, 2, 8 and 11. It s evdence of
effectve and effcent management of IP that refects a fexbe approach.
233
Ibd.
234
http://www.ag.gov.au/cca.
235
Inqury nto the Pubcatons Prcng Pocy of the Austraan Government Pubshng
Servce (PSA 1992).
236
Inqury nto the Pubcatons Prcng Pocy of the Austraan Government Pubshng
Servce (PSA 1992) p105.
66
Copyrght n materas owned and hed by government agences shoud be
managed by the responsbe government agency. Deang wth copyrght
at ts source ensures that the most nformed persons are makng decsons
about how the matera shoud be made avaabe to the Austraan pubc.
Creatve Commons censng offers a broad approach that manages
copyrght up front, wthout the need to nvest resources n case-by-case,
negotated censng transactons.
Nevertheess, there st remans a roe for a centra, specazed body n
reaton to copyrght pocy. However, ths roe s dfferent to roe currenty
assgned to the CCA t s not concerned wth the mcro-management of
copyrght materas, but wth hgh-eve ssues of copyrght pocy and
practce. For exampe, a centra body coud provde specazed assstance
to government agences n determnng whether to appy open content
cences to ther materas. It coud be tasked wth provdng gudance on
specfc ssues of copyrght aw, such as the scope of "speca case" under
s 200AB of the Copyrght Act. Where the agency s unabe to provde
defntve advce on these questons, t coud take a ead roe n seekng
further carfcaton on the ssue.
There s a strong need for greater access to materas that provde
gudance about copyrght aw and practce. Ths agns wth Prncpe 4
from the Statement of IP Prncpes, whch states that "||mpementaton of
the IP management pocy shoud be supported by approprate tranng
and resources, ncudng access to expert advce".
237
Deveopng an IP
Manua for Austraan Government Agences woud certany assst, as
woud the deveopment of other resources such as practca copyrght and
censng tookts (desktop appcatons where possbe). However, the task
of deveopng these resources shoud not be assgned to ony one
Government department or body; t shoud not be assumed that a the
reevant expertse w be stuated wthn the one department. Instead,
pubc and prvate sector copyrght experts around Austraa coud be
commssoned to contrbute to the deveopment of practca, dverse and
comprehensve gudance materas and toos.
Recommenation 44 A 1ns#re access to "ega" avice
an g#iance a-o#t copyright "aw an practice
To ens#re that copyright P+! can -e manage to give effect
to the Bgovernment9sCepartment9sD po"icy on access an
re#se' government agencies reH#ire access to "ega" avice
an practica" g#iance on the imp"ementation of systems
an proce#res Einc"#ing "icensing practices an
techno"ogiesF to ena-"e access to an re#se of P+!
Epartic#"ar"y in the on"ine' we- 2.0 environmentF.
Provie f#ning to eve"op the capacities of p#-"ic sector
organisations to ea" with copyright "aw an management
of P+!' inc"#ing eve"oping practica" copyright an
"icensing too"kits Eesktop app"ications where possi-"eF.
237

http://www.ag.gov.au/www/agd/agd.nsf/Page/Copyrght_CommonweathCopyrghtAdmnstr
aton_StatementofIPPrncpesforAustraanGovernmentAgences.
67
68
$PP17,!: $
Copyright' ,esigns an Patents $ct 4.33 E)*F
1988 CHAPTER 48
http://www.ba.org/uk/egs/num_act/1998/ukpga_19880048_en_1.
htm
Chapter !!!
P#-"ic aministration
#$ Parlia!entary and %udicial proceedings
(1) Copyrght s not nfrnged by anythng done for the purposes of
paramentary or |udca proceedngs.
(2) Copyrght s not nfrnged by anythng done for the purposes of
reportng such proceedngs; but ths sha not be construed as authorsng
the copyng of a work whch s tsef a pubshed report of the proceedngs.
#& 'oyal Co!!issions and statutory in(uiries
(1) Copyrght s not nfrnged by anythng done for the purposes of the
proceedngs of a Roya Commsson or statutory nqury.
(2) Copyrght s not nfrnged by anythng done for the purpose of
reportng any such proceedngs hed n pubc; but ths sha not be
construed as authorsng the copyng of a work whch s tsef a pubshed
report of the proceedngs.
(3) Copyrght n a work s not nfrnged by the ssue to the pubc of copes
of the report of a Roya Commsson or statutory nqury contanng the
work or matera from t.
(4) In ths secton
"Roya Commsson" ncudes a Commsson apponted for
Northern Ireand by the Secretary of State n pursuance of the
prerogatve powers of Her Ma|esty deegated to hm under
secton 7(2) of the |1973 c. 36.| Northern Ireand Consttuton
Act 1973; and
"statutory nqury" means an nqury hed or nvestgaton
conducted n pursuance of a duty mposed or power conferred
by or under an enactment.
#) *aterial open to pu+lic inspection or on o,,icial register
(1) Where matera s open to pubc nspecton pursuant to a statutory
requrement, or s on a statutory regster, any copyrght n the matera as
69
a terary work s not nfrnged by the copyng of so much of the matera
as contans factua nformaton of any descrpton, by or wth the authorty
of the approprate person, for a purpose whch does not nvove the
ssung of copes to the pubc.
(2) Where matera s open to pubc nspecton pursuant to a statutory
requrement, copyrght s not nfrnged by the copyng or ssung to the
pubc of copes of the matera, by or wth the authorty of the approprate
person, for the purpose of enabng the matera to be nspected at a more
convenent tme or pace or otherwse factatng the exercse of any rght
for the purpose of whch the requrement s mposed.
(3) Where matera whch s open to pubc nspecton pursuant to a
statutory requrement, or whch s on a statutory regster, contans
nformaton about matters of genera scentfc, technca, commerca or
economc nterest, copyrght s not nfrnged by the copyng or ssung to
the pubc of copes of the matera, by or wth the authorty of the
approprate person, for the purpose of dssemnatng that nformaton.
(4) The Secretary of State may by order provde that subsecton (1), (2) or
(3) sha, n such cases as may be specfed n the order, appy ony to
copes marked n such manner as may be so specfed.
(5) The Secretary of State may by order provde that subsectons (1) to (3)
appy, to such extent and wth such modfcatons as may be specfed n
the order
(a) to matera made open to pubc nspecton by
() an nternatona organsaton specfed n the order, or
() a person so specfed who has functons n the Unted Kngdom
under an nternatona agreement to whch the Unted Kngdom s
party, or
(b) to a regster mantaned by an nternatona organsaton
specfed n the order,
as they appy n reaton to matera open to pubc nspecton
pursuant to a statutory requrement or to a statutory regster.
(6) In ths secton
"approprate person" means the person requred to make the
matera open to pubc nspecton or, as the case may be, the
person mantanng the regster;
"statutory regster" means a regster mantaned n pursuance of
a statutory requrement; and
"statutory requrement" means a requrement mposed by
provson made by or under an enactment.
(7) An order under ths secton sha be made by statutory nstrument
whch sha be sub|ect to annument n pursuance of a resouton of ether
House of Parament.
#- *aterial co!!unicated to the Crown in the course o, pu+lic
+usiness
70
(1) Ths secton appes where a terary, dramatc, musca or artstc work
has n the course of pubc busness been communcated to the Crown for
any purpose, by or wth the cence of the copyrght owner and a
document or other matera thng recordng or embodyng the work s
owned by or n the custody or contro of the Crown.
(2) The Crown may, for the purpose for whch the work was communcated
to t, or any reated purpose whch coud reasonaby have been antcpated
by the copyrght owner, copy the work and ssue copes of the work to the
pubc wthout nfrngng any copyrght n the work.
(3) The Crown may not copy a work, or ssue copes of a work to the
pubc, by vrtue of ths secton f the work has prevousy been pubshed
otherwse than by vrtue of ths secton.
(4) In subsecton (1) "pubc busness" ncudes any actvty carred on by
the Crown.
(5) Ths secton has effect sub|ect to any agreement to the contrary
between the Crown and the copyrght owner.
#. Pu+lic records
Matera whch s comprsed n pubc records wthn the meanng of the
|1958 c. 51.| Pubc Records Act 1958, the |1937 c. 43.| Pubc Records
(Scotand) Act 1937 or the |1923 c. 20 (N.I.).| Pubc Records Act (Northern
Ireand) 1923 whch are open to pubc nspecton n pursuance of that Act,
may be coped, and a copy may be supped to any person, by or wth the
authorty of any offcer apponted under that Act, wthout nfrngement of
copyrght.
$/ Acts done under statutory authority
(1) Where the dong of a partcuar act s specfcay authorsed by an Act
of Parament, whenever passed, then, uness the Act provdes otherwse,
the dong of that act does not nfrnge copyrght.
(2) Subsecton (1) appes n reaton to an enactment contaned n
Northern Ireand egsaton as t appes n reaton to an Act of Parament.
(3) Nothng n ths secton sha be construed as excudng any defence of
statutory authorty otherwse avaabe under or by vrtue of any
enactment.
71
Copyright $ct 4..4 E7JF
Pubc Act 1994 No 143
Date of assent 15 December 1994
http://www.nz.org/nz/egs/conso_act/ca1994133/
0) No copyright in certain wor1s
(1) No copyrght exsts n any of the foowng works, whenever those
works were made:
(a) Any B ntroduced nto the House of Representatves:
(b) Any Act as dened n secton 4 of the Acts Interpretaton Act
1924:
(c) Any reguatons:
(d) Any byaw as dened n secton 2 of the Byaws Act 1910:
(e) The New Zeaand Paramentary Debates:
(f) Reports of seect commttees ad before the House of
Representatves:
(g) |udgments of any court or trbuna:
(h) Reports of Roya commssons, commssons of nqury, mnstera
nqures, or statutory nqures.
(1A) No Crown copyrght exsts n any work, whenever that work was
made,-
(a) n whch the Crown copyrght has not been assgned to another
person; and
(b) that s ncorporated by reference n a work referred to n
subsecton (1).
(1B) Except as speced n subsecton (1A), nothng n subsecton (1)
affects copyrght n any work that s ncorporated by reference n a work
referred to n subsecton (1).
(2) Subsecton (1) of ths secton sha come nto force on a date to be
apponted by the GovernorGenera by Order n Counc; and one or more
Orders n Counc may be made appontng dfferent dates for dfferent
paragraphs of that subsecton.
Subsectons (1A) and (1B) were nserted, as from 14 Apr 203 Copyrght
Amendment Act 2005 (2005 No 33).
$. Parlia!entary and %udicial proceedings
(1) Copyrght s not nfrnged by anythng done for the purposes of
paramentary or |udca proceedngs.
(2) Copyrght s not nfrnged by anythng done for the purposes of
reportng paramentary or |udca proceedngs.
Compare: Copyrght, Desgns and Patents Act 1988, s 45 (UK); 1962 No 33 ss
19(4), 20(7)
72
&/ 'oyal co!!issions and statutory in(uiries
(1) Copyrght s not nfrnged by anythng done for the purposes of the
proceedngs of a Roya commsson, commsson of nqury, mnstera
nqury, or statutory nqury.
(2) Copyrght s not nfrnged by anythng done for the purposes of
reportng any proceedngs of a Roya commsson, commsson of nqury,
mnstera nqury, or statutory nqury that are hed n pubc.
(3) Copyrght n a work s not nfrnged by the ssue to the pubc of copes
of the report of a Roya commsson, commsson of nqury, mnstera
nqury, or statutory nqury contanng the work or matera from t.
Compare: Copyrght, Desgns and Patents Act 1988, s 46 (UK)
&2 *aterial open to pu+lic inspection or on o,3cial register
(1) Sub|ect to any Order n Counc made under subsecton (4) of ths
secton, where matera s open to pubc nspecton or pubc reference
pursuant to a statutory requrement, or s on a statutory regster,
copyrght n the matera s not nfrnged by the copyng of the matera, by
or wth the authorty of the approprate person, for a purpose that does
not nvove the ssung of copes to the pubc.
(2) Sub|ect to any Order n Counc made under subsecton (4) of ths
secton, where matera s open to pubc nspecton or pubc reference
pursuant to a statutory requrement, copyrght s not nfrnged by the
copyng or ssung to the pubc of copes of the matera, by or wth the
authorty of the approprate person, for the purpose of enabng the
matera to be nspected at a more convenent tme or pace or otherwse
factatng the exercse of any rght for the purpose of whch the
requrement s mposed.
(3) Sub|ect to any Order n Counc made under subsecton (4) of ths
secton, where matera that s open to pubc nspecton or pubc
reference pursuant to a statutory requrement, or that s on a statutory
regster, contans nformaton about matters of genera scentc,
technca, commerca, or economc nterest, copyrght s not nfrnged by
the copyng or ssung to the pubc of copes of the matera, by or wth
the authorty of the approprate person, for the purpose of dssemnatng
that nformaton.
(4) The GovernorGenera may from tme to tme, by Order n Counc,
provde that a or any of subsectons (1) to (3) of ths secton sha, n such
cases as may be speced n the order, appy ony to copes marked n
such manner as may be so
speced.
(5) The GovernorGenera may from tme to tme, by Order n Counc,
provde that a or any of subsectons (1) to (3) of ths secton appy, to
such extent and wth such modcatons as may be speced n the order,
n reaton to-
73
(a) Matera made open to pubc nspecton or pubc reference by-
() An nternatona organsaton speced n the order; or
() A person speced n the order who has functons n New
Zeaand under an nternatona agreement to whch New
Zeaand s a party; or
(b) A regster mantaned by an nternatona organsaton speced n
the order,-
as those provsons appy n reaton to matera open to pubc nspecton
or pubc reference pursuant to a statutory requrement or by vrtue of
beng on a statutory regster.
(6) In ths secton,-
$ppropriate person means the person requred to make the matera
open to pubc nspecton or pubc reference or, as the case may be, the
person mantanng the regster +tat#tory register means a regster
mantaned pursuant to a statutory requrement
+tat#tory reH#irement means a requrement mposed by a provson of
an enactment.
Compare: Copyrght, Desgns and Patents Act 1988, ss 47, 49 (UK); 1962 No 33 s
61
&0 *aterial co!!unicated to the Crown in course o, pu+lic
+usiness
(1) Ths secton appes where-
(a) A terary, dramatc, musca, or artstc work has, n the course of
pubc busness, been communcated to the Crown for any purpose,
by or wth the cence of the copyrght owner; and
(b) A document (wthn the meanng of secton 2 of the Ofca
Informaton Act 1982) recordng or embodyng the work s owned by,
or s n the custody or contro of, the Crown.
(2) The Crown may, for-
(a) The purpose for whch the work was communcated to the Crown;
or
(b) Any reated purpose that coud reasonaby have been antcpated
by the copyrght owner,-
copy the work, and ssue copes of the work to the pubc, wthout
nfrngng copyrght n the work.
(3) The Crown may not copy a work, or ssue copes of a work to the
pubc, under ths secton f the work has prevousy been pubshed
otherwse than under ths secton.
(4) In subsecton (1) of ths secton, the term pubc busness ncudes any
actvty carred on by the Crown.
(5) Ths secton has effect sub|ect to any agreement to the contrary
between the Crown and the copyrght owner.
74
Compare: Copyrght, Desgns and Patents Act 1988, s 48 (UK)
&4 Use o, copyright !aterial ,or services o, the Crown
(1) Copyrght n a work s not nfrnged by anythng done n reaton to the
work, by or on behaf of the Crown or any person authorsed n wrtng by a
government department,-
(a) For the purpose of natona securty or durng a perod of
emergency; or
(b) In the nterests of the safety or heath of the pubc or any
members of the pubc.
(2) Where any act s done under subsecton (1) of ths secton, the Crown
sha be abe to pay, out of money approprated by Parament for the
purpose, equtabe remuneraton to the copyrght owner upon such terms
as may be agreed upon between the Crown and the copyrght owner or, n
the absence of agreement, upon such terms as sha be determned by the
Trbuna.
(3) No act to whch subsecton (1) of ths secton appes sha-
(a) Consttute pubcaton of a work; or
(b) Affect the term of copyrght n a work.
Compare: 1962 No 33 s 53(1), (3), (4)
&) Acts per!itted on assu!ptions as to e5piry o, copyright or
death o, author in relation to anony!ous or pseudony!ous wor1s
(1) Copyrght n a terary, dramatc, musca, or artstc work s not
nfrnged by any act done at a tme when, or n pursuance of
arrangements made at a tme when,-
(a) It s not possbe for a person who wshes to do so to ascertan the
dentty of the author by reasonabe nqury; and
(b) It s reasonabe to assume-
() That copyrght has expred; or
() That the author ded 50 years or more before the begnnng
of the caendar year n whch the act s done or the
arrangements are made.
(2) Subsecton (1)(b)() of ths secton does not appy n reaton to-
(a) A work n whch Crown copyrght exsts under secton 26 of ths
Act; or
(b) A work-
() In whch copyrght orgnay vested n an nternatona
organsaton under secton 28 of ths Act; and
() In respect of whch an order made under that secton
speces a copyrght perod onger than 50 years.
(3) In reaton to a work of |ont authorshp,-
(a) The reference n subsecton (1)(a) of ths secton to ts beng
possbe to ascertan the dentty of the author sha be construed as
a reference to ts beng possbe to ascertan the dentty of any of the
authors; and
75
(b) The reference n subsecton (1)(b)() of ths secton to the author
havng ded sha be construed as a reference to a the authors
havng ded.
Compare: Copyrght, Desgns and Patents Act 1988, s 57 (UK)
76
$PP17,!: =
Copyright' ,esigns an Patents $ct 4.33 E)*F
1988 CHAPTER 48
http://www.ba.org/uk/egs/num_act/1988/ukpga_19880048_en_1.
htm
2)/ 6ransitional provisions and savings
Schedue 1 contans transtona provsons and savngs reatng to works
made, and acts or events occurrng, before the commencement of ths
Part, and otherwse wth respect to the operaton of the provsons of ths
Part.
..
SCHEDULE 1
Copyrght: transtona provsons and savngs
Introductory
1.
.
708 'e,erences in this Schedule to 9co!!ence!ent9, without
!ore, are to the date on which the new copyright
provisions co!e into ,orce.
748 'e,erences in this Schedule to 9e5isting wor1s9 are to wor1s
!ade +e,ore co!!ence!ent: and ,or this purpose a wor1
o, which the !a1ing e5tended over a period shall +e
ta1en to have +een !ade when its !a1ing was
co!pleted.
Genera prncpes: contnuty of the aw
4.
6he new copyright provisions apply in relation to things e5isting
at co!!ence!ent as they apply in relation to things
co!ing into e5istence a,ter co!!ence!ent, su+%ect to
any e5press provision to the contrary.
.
Duraton of copyrght n exstng works
12.
77
(1) The foowng provsons have effect wth respect to the duraton of
copyrght n exstng works.
The queston whch provson appes to a work sha be determned by
reference to the facts mmedatey before commencement; and
expressons used n ths paragraph whch were defned for the purposes of
the |Copyright Act 1956, 1956 c. 74| (1956 Act) have the same meanng
as n that Act.
(2) Copyrght n the foowng descrptons of work contnues to subsst
unt the date on whch t woud have expred under the 1956 Act
(a) terary, dramatc or musca works n reaton to whch the perod of
50 years mentoned n the provso to secton 2(3) of the 1956 Act
(duraton of copyrght n works made avaabe to the pubc after
the death of the author) has begun to run;
(b) engravngs n reaton to whch the perod of 50 years mentoned n
the provso to secton 3(4) of the 1956 Act (duraton of copyrght n
works pubshed after the death of the author) has begun to run;
(c) pubshed photographs and photographs taken before 1st |une
1957;
(d) pubshed sound recordngs and sound recordngs made before 1st
|une 1957;
(e) pubshed fms and fms fang wthn secton 13(3)(a) of the 1956
Act (fms regstered under former enactments reatng to
regstraton of fms).
(3) Copyrght n anonymous or pseudonymous terary, dramatc, musca
or artstc works (other than photographs) contnues to subsst
(a) f the work s pubshed, unt the date on whch t woud have
expred n accordance wth the 1956 Act, and
(b) f the work s unpubshed, unt the end of the perod of 50 years
from the end of the caendar year n whch the new copyrght
provsons come nto force or, f durng that perod the work s frst
made avaabe to the pubc wthn the meanng of secton 12(2)
(duraton of copyrght n works of unknown authorshp), the date on
whch copyrght expres n accordance wth that provson;
uness, n any case, the dentty of the author becomes known before that
date, n whch case secton 12(1) appes (genera rue: fe of the author
pus 50 years).
(4) Copyrght n the foowng descrptons of work contnues to subsst
unt the end of the perod of 50 years from the end of the caendar year n
whch the new copyrght provsons come nto force
78
(a) terary, dramatc and musca works of whch the author has ded
and n reaton to whch none of the acts mentoned n paragraphs
(a) to (e) of the provso to secton 2(3) of the 1956 Act has been
done;
(b) unpubshed engravngs of whch the author has ded;
(c) unpubshed photographs taken on or after 1st |une 1957.
(5) Copyrght n the foowng descrptons of work contnues to subsst
unt the end of the perod of 50 years from the end of the caendar year n
whch the new copyrght provsons come nto force
(a) unpubshed sound recordngs made on or after 1st |une 1957;
(b) fms not fang wthn sub-paragraph (2)(e) above,
(d) uness the recordng or fm s pubshed before the end of that
perod n whch case copyrght n t sha contnue unt the end of
the perod of 50 years from the end of the caendar year n whch
the recordng or fm s pubshed.
(6) Copyrght n any other descrpton of exstng work contnues to subsst
unt the date on whch copyrght n that descrpton of work expres n
accordance wth sectons 12 to 15 of ths Act.
(7) The above provsons do not appy to works sub|ect to Crown or
Paramentary copyrght (see paragraphs 41 to 43 beow).
.
79
Copyright $ct 4..4 E7JF
Pubc Act 1994 No 143
Date of assent 15 December 1994
http://www.nz.org/nz/egs/conso_act/ca1994133/
Section 0; <nterpretation
.
comm#nicate means to transmt or make avaabe by means of a
communcaton technoogy, ncudng by means of a teecommuncatons
system or eectronc retreva system
.
8ateria" time' G
(a) In reaton to a terary, dramatc, musca, or artstc work, means, -
() In the case of an unpubshed work, when the work s made
or, f the makng of the work extends over a perod, a
substanta part of that perod; and
() In the case of a pubshed work, when the work s frst
pubshed or, f the author has ded before that tme,
mmedatey before hs or her death; .
Section ) ; *eaning o, un1nown authorship
(1) For the purposes of ths Act, a work s of unknown authorshp f the
dentty of the author s unknown or, n the case of a work of |ont
authorshp, f the dentty of none of the authors s known.
(2) For the purposes of ths Act, the dentty of an author sha be
regarded as unknown f t s not possbe for a person who wshes to
ascertan the dentty of the author to do so by reasonabe nqury;
but f that dentty s once known t sha not be subsequenty
regarded as unknown.
Section 00 ; Duration o, copyright in literary, dra!atic, !usical,
or artistic wor1s
(1) Sub|ect to the foowng provsons of ths secton, copyrght n a
terary, dramatc, musca or artstc work expres at the end of the
perod of 50 years from the end of the caendar year n whch the
author des.
(2) If the work s computer-generate, copyrght expres at the end of
the perod of 50 years from the end of the caendar year n whch
the work s made.
(3) If the work s of unknown authorshp, copyrght expres at the end of
the perod of 50 years from the end of the caendar year n whch t
s frst made avaabe to the pubc by an authorsed act.
(4) For the purposes of subsecton (3), the crcumstances n whch a
work may be made avaabe to the pubc ncude, -
(a) n the case of a terary, dramatc or musca work, -
80
() performance n pubc;
() communcaton to the pubc;
(b) n the case of an artstc work, -
() exhbton n pubc;
() the payng or showng n pubc of a fm that ncudes the
work;
() communcaton to the pubc.
(5) If
(a) A work s of unknown authorshp; and
(b) Copyrght n the work has expred pursuant to subsecton (3) of
ths secton; and
(c) The dentty of the author becomes known after the copyrght
has expred, -
subsecton (1) of ths secton does not appy to revve copyrght n
the work.
(6) In reaton to a work of |ont authorshp, -
(a) The reference n subsecton (1) of ths secton to the death of the
author sha be construed, -
() If the dentty of a the authors s known, as a reference to
the ast of them to de;
() If the dentfy of one or more, but not a, of the authors s
known, as a reference to the death of the ast of the
authors whose dentty s known; and
(b) The reference n subsecton (5) of ths secton to the dentty of
the author becomng known sha be construed as a reference to
the dentty of any of the authors becomng known.
(7) Ths secton does not appy to copyrght n a work to whch secton
26 or secton 28 of ths Act appes.
Compare: Copyrght, Desgns and Patents Act 1988, s 12 (UK); 1962 No 33 s
8(1)
|Secton 26 = Crown Copyrght; Secton 28 = Copyrght vestng n certan
nternatona organsatons|
Section &) ; Acts per!itted on assu!ptions as to e5piry o,
copyright or death o, author in relation to anony!ous or
pseudony!ous wor1s
(1) Copyrght n a terary, dramatc, musca, or artstc work s not
nfrnged by any act done at a tme when, or n pursuance of
arrangements made at a tme when,-
(a) It s not possbe for a person who wshes to do so to ascertan the
dentty of the author by reasonabe nqury; and
(b) It s reasonabe to assume-
() That copyrght has expred; or
() That the author ded 50 years or more before the begnnng
of the caendar year n whch the act s done or the
arrangements are made.
(2) Subsecton (1)(b)() of ths secton does not appy n reaton to-
(a) A work n whch Crown copyrght exsts under secton 26 of ths
81
Act; or
(b) A work-
() In whch copyrght orgnay vested n an nternatona
organsaton under secton 28 of ths Act; and
() In respect of whch an order made under that secton
speces a copyrght perod onger than 50 years.
(3) In reaton to a work of |ont authorshp,-
(a) The reference n subsecton (1)(a) of ths secton to ts beng
possbe to ascertan the dentty of the author sha be construed as
a reference to ts beng possbe to ascertan the dentty of any of the
authors; and
(b) The reference n subsecton (1)(b)() of ths secton to the author
havng ded sha be construed as a reference to a the authors
havng ded.
Compare: Copyrght, Desgns and Patents Act 1988, s 57 (UK)
Section 22$ ; Copyright to pass under will with unpu+lished
wor1s
Where under a bequest (whether specfc or genera) a person s entted,
benefcay or otherwse, to
(a) An orgna document or other matera thng recordng or
embodyng a terary, dramatc, musca or artstc work that was not
pubshed before the death of the testator; or
(b) An orgna matera thng contanng a sound recordng or fm that
was not pubshed before the death of the testator, -
the bequest sha, uness a contrary ntenton s ndcated n the
testators w or codc to that w, be construed as ncudng the
copyrght n the work n so far as the testator was the copyrght owner
mmedatey before hs or her death.
Section 22) ; 'ight to !a1e conditions in respect o, certain
unpu+lished wor1s
(1) Ths secton appes where the owner of the copyrght n an
unpubshed terary, dramatc, or musca work, or an unpubshed
artstc work other than a photograph, has, whether before or after
the commencement of ths Act, transferred or bequeathed to an
nsttuton
(a) The property n or possesson of the manuscrpt of a terary,
dramatc or musca work or a copy of the manuscrpt; or
(b) The property n or possesson of the artstc work, -
sub|ect to any condtons prohbtng, restrctng, or reguatng
pubcaton of the work for a specfed perod or wthout any mt on the
perod.
(2) Whe the manuscrpt, copy, or work s n the possesson of the
nsttuton, any pubcaton of the work s breach of such a condton
by
(a) The nsttuton ownng the manuscrpt, copy, or work; or
82
(b) The nsttuton havng possesson of the manuscrpt, copy or
work; or
(c) Any other person
sha, notwthstandng that the copyrght n the work may have
expred, be actonabe as f copyrght contnued to exst n the work
and the pubcaton were an nfrngement of copyrght.
(3) Nothng n ths secton appes to any pubcaton wth the consent of
the person who woud be the owner of the copyrght n the work f
the copyrght had not expred.
(4) In ths secton, the term instit#tion means the Crown, a oca body,
a prescrbed brary or archve wthn the meanng of secton 50 of
ths Act, an nsttuton wthn the meanng of secton 159 of the
Educaton Act 1989, or any other nsttuton prescrbed by
reguatons made under ths Act.
+ection /0 !nterpretation
(1) In sectons 51 to 56C, uness the context otherwse requres
$rchive
(a) Means
() Archves New Zeaand (Te Rua Mahara o te Kawanatanga);
or
() The Natona Lbrary; or
() The sound archve mantaned by Rado New Zeaand
Lmted; or
(v) The fm archve mantaned by Teevson New Zeaand
Lmted; or
(v) The fm archve mantaned by the New Zeaand Fm
Archve Incorporaton; or
(v) Any coecton of documents (wthn the meanng of
secton 2 of the Offca Informaton Act 1982) of hstorca
sgnfcaton or pubc nterest that s n the custody of and
beng mantaned by a body, whether ncorporated or
unncorporated, that does not keep and mantan the
coecton for the purpose of dervng a proft; and
(b) ncudes, n reaton ony to ts hodng of pubc archves (wthn
the meanng of secton 4 of the Pubc Records Act 2005), an
approved repostory wthn the meanng of that secton of that
Act
Prescri-e "i-rary means
(a) The Natona Lbrary; or
(b) The Paramentary Lbrary; or
(c) Every aw brary provded and mantaned under secton 375(1)
of the Lawyers and Conveyancers Act 2006; or
(d) A brary mantaned by an educatona estabshment,
government department, or oca authorty; or
(e) A brary or any other cass of brary prescrbed by reguatons
made under ths Act, not beng a brary conducted for proft.
+che#"e 4
40 A ,#ration of copyright in works genera""y
83
.
(2) In reaton to
.
(c) A terary, dramatc, musca, or artstc work (other than a
photograph) of |ont authorshp made before commencement but
not pubshed before the 1
st
day of Apr 1963, secton 22(6) of
ths Act appes; and
(d) A work of unknown authorshp, beng a terary, dramatc,
musca, or artstc work (other than a photograph)
() If the work was pubshed before commencement,
subsectons (3) to (5) of secton 22 of ths Act appy; and
() If the work was unpubshed before commencement,
copyrght exsts unt the end of the perod of 50 years
from the end of the caendar year n whch the new
copyrght provsons come nto force or, f durng that
perod the work s frst made avaabe to the pubc wthn
the meanng of subsecton (4) of secton 22 of ths Act, the
date on whch copyrght expres under subsecton (3) of
that secton
.
(3) If, n any case to whch subcause (2)(d)() of ths cause appes, the
dentty of the author becomes known before the date on whch the
copyrght woud otherwse have expred, copyrght expres n
accordance wth secton 22(1) of ths Act.
.
43 A ,#ration of copyright in certain works mae on or after 4
$pri" 4.@? an -efore commencement
(1) In reaton to a terary, dramatc, musca or artstc work (other
than a photograph)
(a) Made on or after the 1
st
date of Apr 1963 and before
commencement; and
(b) The author of whch ded before commencement; and
(c) That was not, after the death of the author and before
commencement, pubshed or performed n pubc or ncuded n
a broadcast, or offered for sae to the pubc on a record, -
copyrght exsts unt the end of the perod of 75 years from the end
of the caendar year n whch the author ded.
(2) In reaton to a terary, dramatc, musca or artstc work (other
than a photograph)
(a) Made on or after the 1
st
day of Apr 1963 and before
commencement; and
(b) The author of whch des before commencement; and
(c) That was, after the death of the author and before
commencement, pubshed or performed n pubc or ncuded n
a broadcast, or offered for sae to the pubc on a record, -
copyrght exsts unt the expry of the shorter of the foowng
perods:
(d) 50 years from the end of the caendar year n whch an act
referred to n paragraph (c) of ths subcause was frst done
(e) 75 years from the end of caendar year n whch the author ded.
84
2@ A $cts permitte on ass#mptions as to e2piry of copyright or
eath of a#thor in re"ation to anonymo#s or pse#onymo#s works
Secton 67(1)(b)() of ths Act appes
(a) To a work of unknown authorshp that was unpubshed before
commencement, beng a terary, dramatc, musca, or artstc work
(other than a photograph), ony after the end of the perod of 50
years from the end of the caendar year n whch the new copyrght
provsons came nto force; and
(b) To a work referred to n cause 17 of ths Schedue, f the work s
one to whch, under that cause, a secton of ths Act appes.
40 A Copyright to pass #ner wi"" with #np#-"ishe works
(1) Secton 115 of ths Act
(a) Does not appy where the testator des before the 1
st
day of Apr
1963; and
(b) Where the testator ded on or after that date and before
commencement, appes ony n reaton to an orgna document
embodyng a work.
(2) In the case of an author who des before the 1
st
day of Apr 1963, the
ownershp after the authors death of a manuscrpt of the author, where
such ownershp has been acqured under a testamentary dsposton made
by the author and the manuscrpt s of a work that has not been pubshed
or performed n pubc, s prma face proof of the copyrght beng wth the
owner of the manuscrpt.
85
$ppeni2 C
NSW wavers of copyrght n |udgments and egsaton
7otice: Copyright in j#icia" ecisions E4../F
238
Recognsng that the Crown has copyrght n decsons of the courts and
trbunas of New South Waes, ncudng but not mted to prerogatve
rghts and prveges of the Crown n the nature of copyrght, and that t s
desrabe n the nterests of the peope of New South Waes that access to
such decsons shoud not be mpeded except n mted speca
crcumstances:
I, The Honourabe |ohn Hannaford, Attorney Genera for the State of New
South Waes, make and pubsh ths nstrument on behaf of the State of
New South Waes.
,efinitions
1. In ths nstrument:
"a#thorisation" means the authorsaton granted by ths nstrument;
"copyright" ncudes any prerogatve rght or prvege of the Crown n
the nature of copyrght;
"Co#nci"" means the Counc of Law Reportng estabshed by the Counc
of Law Reportng Act 1969 of New South Waes;
"j#icia" ecision" means:
(a) a |udgment, order or award of a State court; or
(b) the reasons for any |udgment, order or award gven by the State
court or a member of the State court, that has or have been pubcy
devered, made or gven;
"+tate" means the State of New South Waes, and ncudes the Crown n
rght of the State of New South Waes;
"+tate co#rt" means:
(a) any court consttuted or contnued by or under a aw of New
South Waes; or
(b) any trbuna or other body consttuted or contnued by or under
a aw of New South Waes and exercsng |udca or ndustra
arbtraton functons.
$#thorisation
2. Any pubsher s by ths nstrument authorsed to pubsh and otherwse
dea wth any |udca decson, sub|ect to the foowng condtons:
(a) copyrght n |udca decsons contnues to resde n the State;
238
The Hon |ohn Hannaford MLC, Attorney Genera, Notce: Copyrght n |udca decsons
NSW
!overnment !aCette No.23 (3 March 1995) p. 1087.
86
(b) the State reserves the rght at any tme to revoke, vary or
wthdraw the authorsaton f the condtons of ts grant are
breached and otherwse on reasonabe notce;
(c) any pubcaton of matera pursuant to the authorsaton must
not ndcate drecty or ndrecty that t s an offca verson of the
matera or that t s a verson of the matera pubshed by or for the
Counc or any other aw reportng agency of the State;
(d) any pubcaton of matera pursuant to the authorsaton must
not:
ncude any headnote or other summary of a |udca decson
(or any summary of submssons) prepared by or for the
Counc or other aw report agency, except wth the further
authorty of the Counc or agency; or
reproduce any footnotes, comments, case sts, cross-
references or other edtora matera n any report of a
|udca decson prepared by or for the Counc or agency,
except wth the further authorty of the Counc or agency;
(e) the arms of the State must not be used n connecton wth the
pubcaton of matera pursuant to the authorsaton, except wth
the further authorty of the Governor (actng wth the advce of the
Executve Counc) or of the Attorney Genera;
(f) any pubcaton of matera pursuant to the authorsaton s
requred to be accuratey reproduced n proper context and to be of
an approprate standard.
7onGenforcement of copyright
3. The State w not enforce copyrght n any |udca decson to the extent
that t s pubshed or otherwse deat wth n accordance wth the
authorsaton. For ths purpose, the authorsaton has effect as a cence
bndng on the State.
Revocation' variation or withrawa" of a#thorisation
4. Any revocaton, varaton or wthdrawa of the authorsaton may be
effected generay or n reaton to specfed pubshers or specfed casses
of pubshers. The authorsaton may aso be revoked, vared or wthdrawn
n reaton to specfed |udca decsons or specfed casses of |udca
decsons. Any such revocaton, varaton or wthdrawa may be by notce
n the New South Waes Government Gazette, or by notce to any
partcuar pubsher, or n any other way as determned from tme to tme
by the Attorney Genera.
)na#thorise ,oc#ments $ct 4.22
5. Attenton s drawn to the Unauthorsed Documents Act 1922 of New
South Waes, whch restrcts the use of the State coat of arms.
Copyright $ct 4.@3 of the Commonwea"th
6. Nothng n ths nstrument affects the rghts of any person (other than
the State) under the Copyrght Act 1968 of the Commonweath. In
partcuar, attenton s drawn to secton 182A of that Act, whch gves any
87
person the rght to make one copy, by reprographc reproducton, of a
|udca decson.
Dated at Sydney ths 28th day of February, 1995.
The Hon |ohn Hannaford
Attorney Genera
7otice: Copyright in "egis"ation an other materia" E4..@F
239
Whereas:
(1) t s recognsed that the Crown has copyrght n the egsaton of
New South Waes and n certan other matera, ncudng but not
mted to prerogatve rghts and prveges of the Crown n the
nature of copyrght, and that t s desrabe n the nterests of the
peope of New South Waes that access to such egsaton and
matera shoud not be mpeded except n mted speca
crcumstances, and
(2) a notce reatng to such copyrght was pubshed n Government
Gazette No 94 of 27 August 1993, and
(3) t s expedent to extend the authorsaton to pubsh and
otherwse dea wth such egsaton and matera, as provded for n
that notce:
I, The Honourabe | W Shaw OC, MLC, Attorney Genera for the State of
New South Waes, make and pubsh ths nstrument on behaf of the State
of New South Waes.
,efinitions
1 In ths nstrument:
"a#thorisation" means the authorsaton granted by ths nstrument.
"copyright" ncudes any prerogatve rght or prvege of the Crown n
the nature of copyrght.
""egis"ative materia"" means:
(a) Acts of the Parament of New South Waes, and
(b) statutory rues wthn the meanng of the Interpretaton Act
1987, and
(c) envronmenta pannng nstruments wthn the meanng of the
Envronmenta Pannng and Assessment Act 1979, and
(d) procamatons or orders made under an Act of the Parament of
New South Waes and pubshed n the Government Gazette, and
(e) admsson rues made under the Lega Professon Act 1987 and
rues made by the costs assessors rues commttee under secton
208R of that Act, and
(f) any other nstruments that are requred under any aw to be
made, approved, or confrmed by the Governor or a Mnster of
State for New South Waes and that are pubshed n the
Government Gazette, and
239
The Hon |W Shaw OC, MLC, Attorney-Genera, Notce: Copyrght n egsaton and other
matera NSW !overnment !aCette No. 110 (27 September 1996) p. 6611.
88
(g) provsons appyng as a aw of New South Waes, by vrtue of an
Act of the Parament of New South Waes, and
(h) any of the above n the form n whch they are offcay prnted
or reprnted, and wth or wthout the ncuson of further
amendments duy made, and
() offca expanatory notes and memoranda pubshed n
connecton wth any of the above, and
(|) tabes of provsons, ndexes or notes pubshed wth any of the
above.
"+tate" means the State of New South Waes, and ncudes the Crown n
rght of the State of New South Waes.
$#thorisation
2 Any pubsher s by ths nstrument authorsed to pubsh and otherwse
dea wth any egsatve matera, sub|ect to the foowng condtons:
(a) copyrght n the egsatve matera contnues to resde n the
State,
(b) State reserves the rght at any tme to revoke, vary or wthdraw
the authorsaton f the condtons of ts grant are breached and
otherwse on reasonabe notce,
(c) Any pubcaton of matera pursuant to the authorsaton must
not ndcate drecty or ndrecty that t s an offca verson of the
matera,
(d) the arms of the State must not be used n connecton wth the
pubcaton of matera pursuant to the authorsaton, except wth
the further authorty of the Governor (actng wth the advce of the
Executve Counc) or of the Attorney Genera,
(e) any pubcaton of matera pursuant to the authorsaton s
requred to be accuratey reproduced n proper context and to be of
approprate standard.
7onGenforcement of copyright
3 The State w not enforce copyrght n egsatve matera to the extent
that t s pubshed or otherwse deat wth n accordance wth the
authorsaton. For ths purpose, the authorsaton has effect as a cence
bndng on the State
Revocation' variation or withrawa" of a#thorisation
4 Any revocaton, varaton or wthdrawa of the authorsaton may be
effected generay or n reaton to specfed pubshers or specfed casses
of pubshers. The authorsaton may aso be revoked, vared or wthdrawn
n reaton to specfed egsatve matera or specfed casses of
egsatve matera. Any such revocaton, varaton or wthdrawa may be
by notce n the Government Gazette, or by notce to any partcuar
pubsher, or n any other way as determned from tme to tme by the
Attorney Genera.
)na#thorise ,oc#ments $ct 4.22
5 Attenton s drawn to the Unauthorsed Documents Act 1922, whch
restrcts use of the State coat of arms.
89
Copyright $ct 4.@3 of the Commonwea"th
6 Nothng n ths nstrument affects the rghts of any person (other than
the State) under the Copyrght Act 1968 of the Commonweath.
Previo#s instr#ment
7 Ths nstrument s ntended to repace the nstrument pubshed n
Gazette No 94 of 27 August 1993 n reaton to copyrght, and accordngy
the authorsaton granted by the prevous nstrument s subsumed by the
authorsaton granted by ths nstrument. However, ths nstrument does
not affect any rghts or abtes accrued or accrung under the prevous
nstrument.
Dated at Sydney ths 17th day of September 1996
The Hon | W Shaw OC, MLC
Attorney Genera
$ppeni2 ,
In researchng for and formuatng ths Report, we consuted wth a
number of key stakehoders:
Contact 5rganisation Cons#"te on:
|essca
Coates
Creatve
Commons
Austraa
|essca s eadng the "Openng
Austraas Archves" ntatve. We
consuted wth her on ssue concernng
the GLAM sector, ncudng copyrght n
unpubshed and orphan works.
Adran
Cunnngham
Natona
Archves
Copyrght ssues affectng the Natona
Archves and the GLAM sector
|eff Kngwe Geoscence
Austraa
Geoscence Austraas mpementaton
of Creatve Commons (CC) censng
Su-Mng
Tam
Austraan
Bureau of
Statstcs (ABS)
ABSs mpementaton of Creatve
Commons (CC) censng
Tony
Bannerman
Bureau of
Meteoroogy
(BoM)
BoMs mpementaton of Creatve
Commons (CC) censng
Rchard Best Department of
Interna Affars,
New Zeaand
Government
Deveopment of the (draft) New Zeaand
Government Open Access and Lcensng
Framework
Ketha Booth State Servces
Commsson,
New Zeaand
Government
Deveopment of the (draft) New Zeaand
Government Open Access and Lcensng
Framework
Neae
Hooper
Department of
|ustce and
Creatve Commons and government; the
Oueensand Governments Government
90
Attorney-
Genera,
Oueensand
Government (on
secondment to
Department of
Envronment and
Natura
Resources)
Informaton Lcensng Framework (GILF)
|m Wretham Offce of Pubc
Sector
Informaton
(OPSI), UK
Government
Creatve Commons and government;
Impementaton of the Power of
Informaton Taskforce
Recommendatons
Andrew Ms Chef
Informaton
Offcer,
Government of
South Austraa
Impementaton of CC censng n the
government sector
Graham
Vckery
Organsaton for
Economc Co-
operaton and
Deveopment
(OECD)
Internatona deveopments reatng to
mpementaton of the OECD
Recommendaton on PSI
Margaret
Brtey
CEO, Coectons
Counc of
Austraa
Copyrght ssues affectng the GLAM
sector
91
=i-"iography
Legis"ation an =i""s
Archives Act 78@A (Cth)
Copyright Act 7@F@ (SA)
Copyright Act 7@89 (Vc)
Copyright Act 7@8: (WA)
Copyright Act 7898 (US)
Copyright Act 7877 (UK)
Copyright Act 787; (Cth)
Copyright Act 78:I (UK)
Copyright Act 78I@ (Cth)
Copyright Act 1976 (US)
Copyright Act 788H (NZ)
Copyright Amendment $ill ;99I (Cth)
Copyright, 0esigns and Patents Act 78@@ (UK)
Legal Profession Act 78@F (NSW)
Petroleum #Sumerged Lands& Act 78IF (Cth)
Water Act ;99F (Cth)
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