Federal Court of Australia

Australian News Channel Pty Ltd v Isentia Pty Limited [2025] FCAFC 49

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed with costs.

2.    Pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), until further order of the Court, access to and disclosure (by publication or otherwise) of the reasons for judgment delivered today be restricted to the parties, their legal representatives and the Court.

3.    By 2.15pm on 11 April 2025, the parties’ legal representatives are to confer on any redactions to be proposed to the reasons for judgment and provide to the Chambers of Justice Owens an agreed form of the reasons for judgment with the proposed redactions highlighted, together with an agreed redacted form of the reasons for judgment that is suitable for publication.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This appeal concerns the scope of the permission granted to the Commonwealth and States (as well as those authorised in writing by them) to use copyright material subject to the payment of compensation by s 183 of the Copyright Act 1968 (Cth) (to which we will refer simply as “the Act”).

2    The appellant is a media company that operates Sky News Australia, delivering both broadcast news content over various television channels, and online news content on an internet website. It is uncontroversial that the appellant owns the copyright in all such content.

3    The respondent provides media monitoring services; meaning that it searches news and other media for items of interest to its clients, identifies them to the client, and on occasion gives the client access to them. It is accepted that the process by which the respondent performs those services involves wholesale copying of the appellant’s copyright content.

4    Ordinarily, of course, the respondent requires a license from the owner of the copyright in any media which form the object of its services to its clients. But some of the respondent’s clients are government departments and statutory authorities, and some of them have provided the respondent with authorities expressed to have been made pursuant to s 183(1) of the Act. The respondent takes the view that its provision of media monitoring services to those clients who have provided it with such an authority does not infringe the appellant’s copyright. The appellant is of the contrary view.

5    Who is right depends on the meaning of the phrase “acts … done for the services of the Commonwealth or State” in s 183(1) of the Act. Set out in full, that provision states:

The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the Commonwealth or a State, or by a person authorised in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.

6    The appellant contends that an act will only fall within s 183(1) “if there is a direct connection between the act comprised in copyright and the provision of a governmental service to the citizenry. That is, each act done by the Crown or an authorised third party must be involved in the act of provision of the service, by being part and parcel of the provision of the service, or being done for the immediate purpose of preparation for the delivery of that service”.

7    The respondent, on the other hand, supports the primary judge’s conclusion that an “otherwise infringing act is done for the services of the Commonwealth or State when the object or purpose of the act is to benefit the Government entity by assisting its employees or officers in the performance of their functions” (at J[76]; see also J[101]).

8    Arising out of the debate about the proper construction of s 183(1) was a related dispute about the level of granularity at which the analysis of the application of the provision to particular facts must be undertaken. In a sense, this controversy represents little more than the working-out of the fact that the appellant’s construction identified a narrower category of acts able to be performed without infringing copyright. That is to say, because it inheres in the appellant’s approach that a different answer might be required in respect of even closely related acts, an “act by act” analysis was said to be necessary; whereas on the respondent’s construction, it would be possible to take a broadly purposive approach to a connected series of acts. Ultimately, though, the appellant contended that even on the primary judge’s construction, some of the respondent’s acts in providing media monitoring services were not within the scope of the protection afforded by s 183(1).

9    Ground 1 of the appellant’s notice of appeal asserted error in the primary judge’s interpretation and application of s 183(1), with grounds 2 to 6 identifying the particular reasons why or respects in which the primary judge was said to have erred. Each of those contentions will be addressed in the course of the analysis that follows but, ultimately, we consider that the primary judge was correct to conclude that, by reason of the operation of s 183(1), the respondent did not infringe the appellant’s copyright, with the result that the appeal should be dismissed.

THE PROPER CONSTRUCTION OF SECTION 183(1)

10    The appellant submits that its preferred construction of s 183(1) of the Act is supported by the legislative history, the application of particular principles of statutory construction articulated in certain cases said to involve analogous statutes, and the statutory text, and context, itself. It challenges the primary judge’s consideration of, and conclusions drawn from, each of those matters.

Legislative History

11    The meaning of s 183(1) is considerably illuminated by consideration of the legislative history leading to its enactment. The history of Part VII of the Act (entitled “The Crown”), in which s 183(1) is found, was comprehensively surveyed by the High Court in Copyright Agency Limited v State of New South Wales (2008) 233 CLR 279; [2008] HCA 35, in particular at [48]-[60], per Gleeson CJ, Gummow, Heydon, Crennan and Kiefel JJ. What follows is an identification of those aspects of that analysis that are relevant to the issue falling for determination in these proceedings.

12    Before commencing their survey of the legislative history, the High Court explained (at [6]-[7]):

Consideration of government use of copyright material must start with the recognition that, subject to Pt VII, the Act “binds the Crown” (s 7). The Crown in Australia was not liable for infringement of copyright before the introduction of Pt VII, Div 2 of the Act. …

Section 7 … was first introduced following legislative developments which commenced with the Crown Proceedings Act 1947 (UK) and resulted in the abrogation of Crown immunity in the United Kingdom in respect of copyright infringement. In its terms, s 7 highlights the fact that Pt VII, Div 2 provides for an exception (and defence) to infringement provisions which would otherwise apply to the Crown.

13    Thus, it was “the specific abolition of Crown immunity for copyright infringement in the United Kingdom [that] inevitably raised the question in Australia of following suit and simultaneously establishing a possible basis upon which some or all Crown use of copyright material might occur without the risk of infringement” (at [53]). Ultimately, those two steps (i.e., the abolition of Crown immunity, and the basis upon which Crown use of copyright was permitted) did in fact occur simultaneously, with the enactment of the Act in 1968. That was in contrast to the United Kingdom, where the two steps had been separated by a number of years.

14    In the United Kingdom, it was in 1951, following the abolition of Crown immunity in 1947, that a Committee of Parliament was established to consider and report upon any desirable changes to the law of copyright. That Committee provided its report in October 1952 (Report of the Copyright Committee (1952) Cmd 8662) (the Report of the Gregory Committee). The Report noted that (at 29, [73]):

Our attention has been drawn to the facts that Section 3 of The Crown Proceedings Act, 1947, provides for civil proceedings against the Crown in respect of infringements of copyright, as well as in respect of infringements of patents and registered designs, but the Copyright Act contains no specific provisions about Crown use of copyright material, of the kind included in the Patents Act and Registered Designs Act about Crown use of patented inventions and registered designs.

15    It is sufficient for present purposes to refer to the central provision relating to the use of patented inventions to which reference was made; namely, s 46(1) of the Patents Act 1949 (UK). It stated:

Notwithstanding anything in this Act, any Government department, and any person authorised in writing by a Government department, may make, use and exercise any patented invention for the services of the Crown in accordance with the following provisions of this section.

16    The Report of the Gregory Committee went on to observe (at 29-30, [75]):

It appears to us to be anomalous that, whilst there are permanent provisions for Crown use of patented inventions and registered designs … there are no corresponding statutory provisions for Crown use of any other copyright material. It seems to us that it may well be at times necessary for a Service Department, for example, when seeking tenders for military equipment … , to copy drawings of, and documents about, the equipment in question, without always waiting for the prior consent of any owners of any copyright in the drawings and documents. … At the same time, it is to be remembered that copyright covers a wide field over much of which, for example, copyright in musical works, the needs for Crown use without the prior consent of the owner are not the same as in the case, for example, of matters relating to military equipment. We accordingly recommend that power to reproduce copyright material for the services of the Crown should be granted by amendment of the Copyright Act … , subject to provision for the payment of compensation … . There should be an added limitation that the rights in question should be exercisable only in connection with equipment for the armed forces of the Crown, and perhaps also for purposes of Civil Defence and of essential communications.

17    The reference to a “Service Department”, shortly before the recommendation concerning the “power to reproduce copyright material for the services of the Crown”, sheds light on the meaning the term was understood to carry. In any event, the meaning of the formula “for the services of the Crown”, as it appears in s 46(1) of the Patents Act 1949 (UK), was considered by the House of Lords a few years later in Pfizer Corporation v Ministry of Health [1965] AC 512. The High Court summarised the effect of that decision in Copyright Agency v NSW at [56], as follows:

A majority in the House of Lords held that the formula, of some antiquity, was not limited to the internal activities of government departments but included use by government departments in the fulfilment of duties imposed on them by legislation, and that the expression was broad enough to cover provision of products to the public.

18    As may be discerned from that summary, the precise focus of the House of Lords differed slightly from the critical issue raised in this appeal. That is to say, the controversy in Pfizer was concerned primarily with the meaning imparted by the use of the word “for”, rather than the concept of “services of the Crown”. Nevertheless, the reasoning of the House of Lords remains instructive in at least two respects.

19    First, various of their Lordships observed that the use of the phrase “for the services of the Crown” in s 46(1) could be traced back to s 27(2) of the Patents, Designs and Trade Marks Act 1883 (UK), which provided, in relation to a patented invention, that “the officers or authorities administering any department of the service of the Crown may … use the invention for the services of the Crown” on specified terms, and beyond that to the phrase “for Our service” included in the customary form of letters patent for inventions (see at 533, per Lord Reid; at 541, per Lord Evershed; at 549, per Lord Pearce; at 560-561, per Lord Wilberforce). The provision contained in the 1883 Act had been enacted in response to a pair of cases involving the use of patented inventions by the Crown and a Crown contractor, respectively (Feather v The Queen (1865) 6 B&S 257 and Dixon v London Small Arms Co Ltd (1876) 1 App Cas 632, HL(E)). The combined effect of those authorities was that while the Crown was not bound in any way by patents, no corresponding immunity applied for the benefit of its contractors. Lord Reid thus observed that s 27 of the 1883 Act was “obviously passed to alter these decisions. On the one hand, the Crown agreed to be bound by patents, but, on the other hand, limited protection was afforded not only to the Crown but also to such contractors” (at 533; see also at 561-563, per Lord Wilberforce).

20    Secondly, the phrase “services of the Crown” was evidently understood to mean those “Government activities which are staffed and operated by servants of the Crown, and are subject to the direction of the appropriate Minister” (at 533, per Lord Reid). His Lordship went on to say:

In Victorian times they were the armed services – the navy and the army – the Civil Service, the foreign colonial and consular services, the Post Office, and perhaps some others. Now there are many more Governmental activities which are staffed and operated by servants of the Crown, and are subject to the direction of the appropriate Minister. But it is not suggested that for this purpose any distinction is to be made between the older and the newer services … .

21    The fact that the word “services” was understood to refer to particular collectives of those who serve the purposes of the Crown (or put another way, the individual organisations of government comprised of servants of the Crown), and not to the things done or provided by way of benefit to members of the public, may be seen throughout the various speeches (see, e.g., at 534, per Lord Reid (“the benefit of the department or service which uses them”, “persons outside the service”, and “activities of Government departments or services”); at 535, per Lord Reid (“members of such services”); at 549, per Lord Pearce (“for use and consumption by or for the benefit of the servants of the Crown”), at 550, per Lord Pearce (“use for the services of the Crown for themselves”); at 552, per Lord Upjohn (“the servants of the Crown or the department”); at 566, per Lord Wilberforce (“[a]n extension of the Crown’s right to use inventions pari passu with an extension of the organisation of the executive, by interpretation of the words ‘the services of the Crown’ is one which judges could legitimately be expected to make”)). The meaning, in other words, is that reflected in the New Shorter Oxford English Dictionary (meaning II, 10a): “A branch of public employment, esp. a Crown department or organization employing officials working for the State.”

22    Returning to Australia: in 1959, after the Report of the Gregory Committee, but before Pfizer, the topic of potential reform of copyright law was the subject of a report of the Copyright Law Review Committee (Report of the Committee Appointed by the Attorney-General of the Commonwealth to Consider what Alterations are Desirable in The Copyright Law of the Commonwealth (the Report of the Spicer Committee)). Relevantly for present purposes, that report contained a recommendation in the following terms (at [404]):

The Gregory Committee recommended that the Crown should be empowered to reproduce copyright material in connexion with the equipment of the Armed Forces and possibly also for civil defence and essential communications, subject to compensation (para. 75). This recommendation has, to a large extent, been put into effect by the provisions of the Defence Contracts Act, 1958. The Solicitor-General of the Commonwealth has expressed the view that the Commonwealth and the States should be empowered to use copyright material for any purposes of the Crown, subject to the payment of just terms to be fixed, in the absence of agreement, by the Court. A majority of us agree with that view. The occasions on which the Crown may need to use copyright material are varied and many. Most of us think that it is not possible to list those matters which might be said to be more vital to the public interest than others. At the same time, the rights of the author should be protected by provisions for the payment of just compensation to be fixed in the last resort by the Court. Our recommendation in this regard is, of course, confined to the Crown in the strict legal sense of that term and is not intended to cover statutory corporations, such as the Australian Broadcasting Commission and the Australian National Airlines Commission, which are not entitled to the privileges and immunities of the Crown.

23    The appellant contrasted the breadth of the Spicer Committee’s recommendation (“for any purposes of the Crown”), with what was contended to be the more limited terms of s 183(1) (“for the services of the Commonwealth or State”). The significance of that difference in language, though, needs to be assessed in light of the form of statutory provision that the Spicer Committee proposed be used to give effect to its recommendation (at [405]):

We note that the Commonwealth and the States have a right to use inventions, subject to the payment of compensation, under section 125 of the Patents Act 1952-1955. We recommend the enactment of a provision on similar lines in respect of Crown use of copyright material.

24    Section 125 of the Patents Act 1952 (Cth) was in a similar form, and traces its lineage, to s 27 of the Patents, Designs and Trade Marks Act 1883 (UK), to which reference has been made above. The inescapable inference is thus that the Spicer Committee considered the formula “for the services of the Commonwealth or State” apt to permit government use of copyright material “for any purpose of the Crown”.

25    It was almost a decade later that the Act was passed. In his Second Reading speech for the Copyright Bill 1968, the Attorney-General said (Commonwealth, Parliamentary Debates, House of Representatives, 16 May 1968, 1527 (Nigel Bowen, Attorney-General) at 1536):

The position of the Crown is more clearly defined under the Bill than under the present law. The Crown will continue to have copyright in respect of works produced or published by it. The Bill puts beyond doubt that the Crown is bound by the copyright law. Provision is made, however, for the use of copyright material for the services of the Commonwealth or the States upon payment of compensation to the owner of the copyright.

26    Of the enactment of s 183(1) in particular, the High Court, in Copyright Agency v NSW, said that it (at [60]):

… followed a form of provisions governing the rights of the Commonwealth and the States to use inventions subject to the payment of compensation; this course had been expressly suggested by the Spicer Committee.

27    The High Court thus explicitly linked the language of s 183(1) of the Act to the form of provision considered in Pfizer and tracing its origin to s 27 of the 1883 Act. Their Honours described the scheme of which s 183(1) forms a part as “a comprehensive licence scheme for government use of copyright material”, and observed that the “purpose of the scheme is to enable governments to use material subject to copyright ‘for the services of the Crown’ without infringement” (at [67]-[68]). The breadth of the permitted use of copyright material by governments under s 183(1) was such that it was held to exclude the possibility that “governments may make, or take the benefit of, arrangements which would have the effect of circumventing” the scheme of which it formed a part (at [70]).

28    The key error that the appellant sought to attribute to the primary judge’s consideration of the legislative history was his Honour’s statement that “s 183(1) of the Copyright Act was introduced to preserve Crown immunity in circumstances where the Crown had no exposure to copyright infringement at all prior to its introduction” (at J[61]). The appellant also complained of his Honour’s reference to the scheme of Pt VII of the Act as having “replaced” the former Crown immunity (see, e.g., at J[62] and J[70]). The appellant submitted that, in so stating, the primary judge’s reasoning proceeded from a flawed initial premise. In particular, the argument was to the effect that (a) the former Crown immunity was in fact abolished by the Act, (b) in its place, a limited permission to use copyright material only “for the services of the Commonwealth or State” was granted, and thus (c) by proceeding on the basis that the purpose of s 183(1) was to preserve the former Crown immunity (or replace it with a statutory permission of a similar extent), the primary judge assumed it was intended to have a wider operation than was the case. This was the crux of ground 2 of the notice of appeal.

29    To the extent that the argument sought to attribute some special significance to the primary judge’s use of the word “preserve”, it must founder on the fact that any fair reading of the reasons as a whole, including the repeated references to Pt VII of the Act “replacing” the former Crown immunity, shows that his Honour well understood that the intention of the Act was to make the Crown subject to copyright for the first time. What is then left of the argument is a disagreement with the conclusion that his Honour drew from the legislative history as to the intended scope of the permission granted by s 183(1).

30    His Honour made no a priori assumption that the words “for the services of the Commonwealth or State” were intended to correspond to the full scope of the former immunity. Rather, his Honour’s survey of the legislative history identified various features that are inconsistent with the narrow meaning sought to be attributed to that phrase by the appellant.

31    We too consider that the legislative history does not assist the appellant:

(a)    That s 183(1) was modelled on, and intended to be construed consistently with, provisions tracing their ancestry to s 27 of the Patents, Designs and Trade Marks Act 1883 (UK) is clear (and so much was said by the High Court in Copyright Agency v NSW at [60], quoted above).

(b)    Those provisions had an established meaning, with the phrase “for the services of the Crown” being described by the High Court in Copyright Agency v NSW at [56] as a formula “of some antiquity”. The decision of the House of Lords in Pfizer, given only three years before the enactment of the Act, was a recent illustration of that fact. Various of the speeches in Pfizer, for the reasons we have set out above, made plain that the “services of the Crown” were not (or at the very least were not limited to) the provision of benefits to members of the public. Rather, the phrase was understood to refer to Departments and other organisations of government. It follows that the contention advanced by ground 4 of the notice of appeal, that “services” meant only the acts comprising the “outward facing functions” of government, must be rejected.

(c)    The failure to adopt the words “for any purposes of the Crown” used in the Report of the Spicer Committee to describe the scope of the permission being recommended, and the use instead of the phrase “for the services of the Commonwealth or State”, does not have the significance that the appellant sought to attribute to it. For the reasons given above, it is plain that the Spicer Committee in fact considered the two phrases to bear an equivalent meaning.

32    It follows that the appellant’s submission that the intention of the Act was, after abolishing its former immunity, to confer upon the Crown “a specific and defined defence to infringement in s 183(1) when those terms were satisfied” (original emphasis), can be accepted. But that submission simply restates in different terms the real issue falling for consideration; namely, what the scope of the s 183(1) defence is. Insofar as the legislative history is concerned, for the reasons given above, it was intended to confer a broad permission to use copyright material, for any purposes of the Crown, subject to an obligation to pay reasonable compensation.

Judicial Consideration of Analogous Statutes

33    The appellant next submitted, in support of ground 3 of the notice of appeal, that the primary judge had erroneously discounted the force of three cases bearing on the proper consideration of s 183(1).

34    The first was Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532; [1989] FCA 60. That was a decision of Gummow J concerning the proper construction of s 104(1) of the Postal Services Act 1975 (Cth). At the relevant time, that provision stated:

Proceedings do not lie against the Commission, an employee of the Commission, a person acting for or on behalf of the Commission under a contract with the Commission or an employee of such a person in respect of any loss or damage suffered by a person by reason of any default, delay, error, omission or loss in the receipt, transmission or delivery of postal articles or of money.

35    The appellant relied on the second of two precepts of statutory construction that Gummow J held provided particular assistance in resolving the issue arising in that case. His Honour described it as follows (at 541):

… [A] statutory limitation or exclusion provision such as s 104 is to be strictly construed for it protects the interests of a statutory authority which is given privileges in the nature of a monopoly for provision of a public service, at the expense of what otherwise would be individual justiciable rights: Australian National Airlines Commission v Newman (1987) 70 ALR 275; 162 CLR 466 at 471, 476; Queensland v Australian Telecommunications Commission (1985) 59 ALR 243; 59 ALJR 562 at 563. Thus, such phrases in s 104(1) as “in respect of” and “by reason of” are to be construed narrowly rather than generously, as would otherwise be the case.

36    The appellant sought to characterise s 183(1), if not as a limitation or exclusion provision, then as a legislative provision sharing sufficiently similar characteristics so as to attract the operation of the rule of statutory construction identified by Gummow J (in the sense that s 183(1) was carving out a field of immunity from liability to which the Crown would otherwise be subject, now that Crown immunity had been abolished, and was thus extinguishing what would otherwise be the enforceable rights of a copyright owner). It was thus argued that the principle of statutory construction described in Suatu required that s 183(1) be “construed narrowly, not generously”. There are two fundamental difficulties with this argument.

37    First, the rationale for the rule identified by Gummow J is not easily applied to circumstances where the individual right in question was both created and curtailed as part of a single set of legislative reforms intended to have a coherent operation. That is to say, it was the passage of the Act that simultaneously made the Crown subject to the general law of copyright, and conferred upon it special rights to engage in otherwise infringing acts. In those circumstances, it is not correct to say, at least without significant qualification, that a privilege has been conferred upon the Crown “at the expense of what otherwise would be individual justiciable rights”. To apply the principle identified by Gummow J to the construction of s 183(1), without taking into account its place in the scheme of the Act as a whole, would run the risk of striking the wrong balance between the provisions abolishing Crown immunity, and those setting out the basis upon which the Crown would be entitled to use copyright material, with the result that the provisions considered as a whole would not be given a coherent construction. To do so, in other words, would infringe the first of the two precepts of statutory construction to which Gummow J referred; namely, that “the provision is to be read in its context, including the other provisions of the statute, other statutes in pari materia and the existing state of the law” (at 541).

38    Secondly, to say that a provision should be construed narrowly rather than generously still requires some rational criterion to be identified in accordance with accepted principles of statutory construction by reference to which the confined meaning is determined. It may be, for example, that a provision that refers only to “acts” should be construed so as not to include “omissions” (Australian National Airlines Commission v Newman (1987) 162 CLR 466; [1987] HCA 9 at 471, per Mason CJ, Deane, Toohey and Gaudron JJ), or that an immunity from liability arising out of the exercise of “powers conferred by this Act” should not extend to liability from “an act which was merely incidental to … the exercise of a power” (Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; [1961] HCA 71 at 117, per Kitto J), or, as Gummow J held in Suatu, that connecting phrases like “in respect of” and “by reason of” should be taken to import a more direct causal link than they may do in other contexts (at 541). It is not a legitimate use of the principle of construction identified by Gummow J simply to say that because different meanings of a particular provision are possible as a matter of language, the one that provides the minimum immunity to the Crown should be selected. Here, the appellant’s construction seeks to give a meaning to the word “services” that is not supported by any consideration other than that it gives s 183(1) a narrower operation than the alternatives.

39    The second case to which the appellant submitted the primary judge failed to have proper regard was Clunies-Ross v Commonwealth of Australia (1984) 155 CLR 193; [1984] HCA 65. The Lands Acquisition Act 1955 (Cth), by s 6, conferred power on the Commonwealth to “acquire land for a public purpose”. That power was threatened to be exercised to acquire the land upon which the plaintiff’s house was erected on Home Island in the Territory of Cocos (Keeling) Islands, “not by reason of any need for or proposed active or passive use of that land but for the purpose of bringing about the exclusion of the plaintiff and his family from that Territory” (at 198, per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

40    The majority held (at 198, original emphasis):

As a matter of language, a power to acquire land for a public purpose appears to us to be prima facie limited to an acquisition of land which is needed or which it is proposed to use, apply or preserve for the advancement or achievement of that purpose.

41    They went on to say (at 199-200):

If the power to acquire for a public purpose which the Act confers is construed as extending to purposes quite unconnected with any need for or future use of the land, the ministerial power thereby created would be surprisingly wide in that, subject only to monetary compensation, it would encompass the subjection of the citizen to the compulsory deprivation of his land, including his home, by executive fiat to achieve or advance any ulterior purpose which was a purpose in respect of which the Parliament has power to make laws or, in the case of land in a Territory, “any purpose in relation to that Territory”. It is, in our view, unlikely that the Parliament would have intended to confer such a power other than by the use of clear words to that effect and subject to stringent and specially framed controls or safeguards against its abuse.

42    The relevance of this authority was said to be twofold:

(a)    First, it was said to show that, where a statute permits the Crown to engage in acts which would otherwise infringe a right held by another person, it ought to be narrowly construed, even if the statute provides for compensation to be paid.

(b)    Secondly, the weight placed on the preposition “for” in its analysis was said to indicate by analogy that the phrase “for the services of the Commonwealth or State” required a “close connection between the particular act comprised in the copyright and the particular services of the Crown to be carried out using that copyright work or subject matter”.

43    The first suggested relevance is answered by the same reasoning given above in connection with the appellant’s reliance on Suatu.

44    Insofar as the second suggested relevance is concerned, it may be accepted that the word “for” conveys a purposive connection, although whether it is properly described as “close” is likely to depend on the particular context in which it is used. The real issue in this case is not the nature of the connection connoted by the word “for”, but rather the meaning of the phrase “services of the Commonwealth or State”. If it were the case that that phrase bears the meaning for which the appellant contends (i.e., those interactions between a government and a member of the public by which the government provides a benefit to the public), then it may be accepted that a connection (quaere “close connection”) between the relevant act comprised in copyright and the service in question would be required. But Clunies-Ross does not shed any light on that question.

45    The final case the significance of which the appellant submitted the primary judge failed to appreciate was University of Western Australia v Gray (No 20) [2008] FCA 498. The issue in that case relevant for present purposes concerned the construction of the power authorising a university to make regulations (the particular regulations in question were intended to give the university various rights in respect of intellectual property created by staff and students). Section 16E(1) of the University of Western Australia Act 1911 (WA) provided that the University Senate was empowered to make regulations, inter alia, “for the purpose of securing and enforcing the management, good government and discipline of the University”. Justice French considered that that power authorised regulations directed to the securing and protection of property belonging to the University under the general law (at [85]), but said (at [86]):

It is a very different matter to propose that the law-making power of the university authorises regulations which alienate or interfere with property rights not vested in UWA. The words of section 16E are not apposite to such a wide construction. Moreover, there is a well established presumption against construing legislation as interfering with vested proprietary interests.

46    His Honour referred to numerous authorities, including CJ Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400; [1968] HCA 77, where Kitto J said that it is a “firmly established rule of law that a statute will not be read as authorizing the expropriation of a subject’s goods without payment unless an intention to do so be clearly expressed” (at 406). The appellant placed particular emphasis on French J’s conclusion that “an inventor’s rights derived from the [Patents Act 1990 (Cth)] or its predecessor fall into the category of property rights which attract the presumption” (at [89]), submitting that it showed that the principle applied to intellectual property rights deriving from statute.

47    For similar reasons to those given above in connection with Suatu and Clunies-Ross, we do not think that his Honour erred in failing to find Gray of any particular assistance. The premise upon which any analogy to those cases must depend, namely that s 183(1) interferes with the vested rights of copyright owners is not made out. In truth, for the reasons we have given, the section bears a more nuanced character. Construed in the context of the Act as a whole, and in particular having regard to the simultaneous enactment of s 7 against the backdrop of general Crown immunity, s 183 may be seen as creating, rather than destroying, rights against the Crown. That is not to deny that rights having their origin in statute, may not be taken or acquired by reason of the operation of other statutory provisions (in addition to Gray, reference might be made, for example, to JT International SA v Commonwealth of Australia (2012) 250 CLR 1; [2012] HCA 43, at [137]-[141], per Gummow J). The point is simply that, when the particular circumstances of the enactment of s 183(1) are considered, the Act is properly seen as defining, rather than abrogating, the rights of copyright owners against the Crown.

48    It follows from the preceding discussion that the corollary of this aspect of the appellant’s argument, that his Honour placed unwarranted weight on the decision of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, must also be rejected. That decision, unlike Suatu, Clunies-Ross, and Gray, is of comparatively direct assistance, in that it concerned s 125 of the Patents Act 1952 (Cth) which, as we have pointed out above, was the model of the provision that the Spicer Committee recommended should be introduced into the Act to facilitate Crown use of copyright. Both provisions use the formula “for the services of the Commonwealth or State” to identify the purposes for which relevant intellectual property may be used by the Crown.

49    The decision has two aspects of present relevance. First, it conforms to the understanding of the word “services” that we have described above. So much may be seen in the following passage of Barwick CJ’s judgment (at 133-134):

The evident purpose of s 125, having regard to sub-s (7), is to ensure that the Governments of the Commonwealth and of the States have the invention available to them for the benefit of the services of the respective Governments at once, rather than at the end of the term of the letters patent. Under s 132 the Patents Act recognizes that in Australia those services are managed or performed, not exclusively by departments of government, but as well by “authorities” of the Commonwealth or State. …

The railway system of the State is, in my opinion, undoubtedly a service of the State and the use of the invention in the construction of railway carriages to be used by the Commissioner in that railway system is a use for a service of the State or for the services of the State … whichever may be the proper way to read the final words of s 125(1).

50    The second is that Barwick CJ discerned the “clear intention” of s 125(1) as being to provide “a means of securing the untrammelled use of the invention by Governments and the authorities of the Commonwealth and of the States”, with sub-ss (5) and (6) ensuring that “proper compensation shall be paid to the owner of the letters patent for the acts of a Government or an authority of Commonwealth or State which makes use of the invention” (at 134). The appellant’s submission that this passage says nothing about the intended breadth of operation of s 125, and states only the truism that the Crown is entitled to use a patented invention in circumstances where it is permitted to do so by the terms of s 125, should not be accepted. It forms part of a longer section of his Honour’s reasons, the purpose of which was to support the conclusion that (at 134):

One could scarcely imagine that sections such as ss 125 and 132, with their evident practical purpose, did not extend to include within the expression the use of the services of the Commonwealth or State, the use of an invention for the purposes of one of the Government railway systems in Australia.

51    Chief Justice Barwick was concerned, in other words, to demonstrate, as the primary judge found at J[82], the “broad and facilitative effect” of the provision. It follows that we do not consider his Honour to have erred in concluding that General Steel did not provide support for the limitations proposed by the appellant.

Text and Context of Section 183(1)

52    The appellant contended that there were various textual and contextual features of s 183(1) that supported the construction for which it contends.

53    The appellant relied on the combination of two aspects of the drafting of s 183(1) to submit that the section “necessarily directs attention to the particular acts comprised in the copyright which are being carried out, which in turn directs attention to the work or other subject matter in respect of which exclusive rights exist” (original emphasis). (This was the fundamental issue raised by ground 5 of the notice of appeal.) The two features are:

(a)    The use of the singular indefinite article “a” to identify the copyright to which the statutory permission applies (i.e., “copyright in a literary, dramatic, musical or artistic work”); and

(b)    The framing of the permission by reference to “any acts comprised in the copyright”.

54    We do not consider that these features have the significance that the appellant seeks to attribute to them. It is not obvious how a permission to use specific copyright material could be expressed other than by referring to “a work”, and the reference to “any acts” is a natural means by which it is made clear that the permission applies to the full range of rights comprised in the copyright. On either construction of the section, the ultimate question will always be whether the freedom of action conferred by s 183(1) extends to particular acts that would otherwise be infringing. As we observed at the outset of these reasons, however, the level of granularity at which the analysis is required to be performed in the context of a particular case will depend upon the potential, on the individual facts of the case, for the provision to require a different answer for different specific acts. That potential will tend to diminish with the increasing breadth of the construction of s 183(1) that is adopted. In other words, if the outer boundary of s 183(1) lies at the point of those acts which were performed in order to provide a governmental service to the citizenry, then a much more fine-grained analysis is likely to be required than if the field extends to acts done for the purposes of the Crown generally.

55    The same broad reasoning answers the appellant’s reliance on other aspects of the statutory scheme of which s 183(1) forms a part:

(a)    The reference in s 183(3) to “the acts in respect of which the authority is given” does not mean that any authority is required to be framed at the level of individual acts. An authority can be expressed at a level of generality appropriate to the scope of the permission sought to be granted. It may be accepted, as the appellant submitted, that the Crown “may authorise copying a work, but not communicating it”. But that does not mean that the Crown must explicitly authorise both copying and communicating, and may not, as it has done here, authorise the respondent to do “any acts comprised in the copyright”. If a narrow authority is granted, then it may well be that a narrow act-by-act analysis is required. But if a general authority is granted, then the analysis will often be capable of proceeding at a higher level.

(b)    The content of the obligation imposed on the Commonwealth and States by s 183(4), in circumstances where “an act comprised in a copyright has been done”, to “inform the owner … of the doing of the act” and furnish information “as to the doing of the act” will, once more, vary according to the circumstances of individual cases. Whether or not a copyright owner has, within the meaning of the provision, been “informed” of the otherwise infringing acts and provided with appropriate information will necessarily depend on particular facts. We do not think that it can be said that in all (or even many) cases, compliance with that obligation could only be achieved by specifically identifying each individual act (as opposed to identifying the set, or a sub-set, of otherwise infringing acts in some more general way). It follows that we do not accept as a general proposition that s 183(4) “clearly contemplates that the Crown be required to provide specific information as to the doing of acts comprised in the copyright, such as ‘on x date 10 copies were made of y work by z authorised party’”. In some cases particularity of that kind may be required, but in others a more compendious approach will be justified.

(c)    The stipulation in s 183(5) that where “an act comprised in a copyright has been done under subsection (1), the terms for the doing of the act” are those either agreed or fixed by the Copyright Tribunal, may be seen to acknowledge that compensation for all uses of copyright material is to be paid to the owner, but it does not imply that the analysis of whether particular conduct falls within or without the protection of s 183(1) must necessarily proceed on an act-by-act basis. At the risk of burdensome repetition, the nature of the analysis appropriate to a case will depend on the facts.

(d)    The presence of the “sampling” regime, as an alternative to s 183(4), contained in ss 183A to 183F, does not undermine the conclusions we have just expressed. The utility of that alternative regime does not depend on acceptance of the appellant’s submissions as to the level of particularity with which otherwise infringing acts are required to be identified in accordance with sub-ss 183(3)-(5). There will be a wide range of circumstances where, by reason of the nature, volume, or circumstances of the Crown’s use of a copyright owner’s material, the sampling regime will represent an efficient means by which the owner’s rights can be determined.

56    The decision in Re Australasian Performing Right Association Ltd’s Reference (1982) 45 ALR 153; [1982] FCA 272 does not strengthen the appellant’s case. While it does appear that, at J[77], the primary judge misapprehended the import of certain obiter dicta in that case, even once those comments are properly understood they do not have the significance that the appellant sought to attribute to them.

57    The dispositive issue in that case was whether the Australian Broadcasting Commission was “the Commonwealth” for the purposes of s 183(1). It was held that it was not, but the joint judgment of Bowen CJ and Franki J went on to consider, in the event that conclusion was wrong, “whether television or sound broadcasts were acts done ‘for the services of the Commonwealth’ within s 183(1)” (at 159). The submission advanced by the ABC was summarised in this way (at 160):

[T]he case was put for the Commission on the basis that each individual act of the Commission did not have to be examined under s 183 to ascertain whether a particular act, for example, the broadcasting of a sound recording, constituted an act done for the services of the Commonwealth but that any act done by the Commission, which fell within s 183, was always an act done for the services of the Commonwealth.

58    Perhaps unsurprisingly, Bowen CJ and Franki J did not agree that anything done by a Commonwealth agency was, by reason of that fact alone, necessarily done for the services of the Commonwealth. Their Honours said (at 161):

One can visualize that, in many instances, even in a very short period, a television or sound broadcast by the Commission may involve acts which, in the absence of some authorization, would infringe a great many copyrights owned by a number of owners. It seems unlikely that Parliament intended to place such broad obligations [i.e., those arising under sub-ss 183(3)-(5)] on the Commonwealth. In addition, one part of a broadcast may not be of a kind which could be said to be done for the services of the Commonwealth, if for no other reason, because of its nature.

59    It is plain that their Honours were influenced by the particular nature of the activities of a television and radio broadcaster, and of the potential for a differential analysis to apply to different acts. To that extent, the reasoning just quoted seems to us to be an example of the point we have stressed repeatedly; namely, that the required level of analysis will depend on the particular circumstances of each case. Accordingly, when Bowen CJ and Franki J said that they were “by no means satisfied that each act should not be examined separately” (at 160), they should not be taken to have been endorsing an inevitable requirement for an “act by act” analysis of the granular kind propounded by the appellant. Rather, their Honours were simply recognising the special potential for a broadcaster like the ABC to infringe many copyrights of different owners, with a corresponding burden of compliance with the obligations imposed by s 183(3)-(5). The burden that their Honours regarded as unlikely to have been intended to be imposed on the Commonwealth existed on the respondent’s construction; not just that of the appellant. Nothing that their Honours said is inconsistent with the fact that sometimes the application of s 183(1) will demand individual focus on discrete acts, while on other occasions a broader perspective will be permissible.

60    Overall, therefore, it may be seen that we do not accept that the statutory scheme of which s 183(1) forms a part will always require a granular analysis of the kind for which the appellant contends, and nor do we consider that the potential for such a granular analysis to be required in particular cases supports the appellant’s construction or case generally.

The Correct Construction of Section 183(1)

61    The combined force of the considerations identified above shows that the primary judge was correct to conclude that s 183(1) of the Act had a “broad and facilitative purpose” (at J[70]). We agree with his Honour that the legislative scheme, understood against the legislative history, was intended “to replace Crown immunity in a manner that recognises private copyright interests but at the same time ensures that, in return for a compulsory licence, the Crown can operate efficiently and without obtaining either the prior permission of the copyright owner or prior agreement as to the terms of use” (at J[70]).

62    We have, as part of our survey of legislative history, already explained why the term “services of the Commonwealth or State” should be understood to mean government departments and other organisations of government. The preposition “for” bears its ordinary meaning in this context, indicating purpose or object (as the primary judge observed at J[72]). It follows that provided copyright material is used for the purposes of a Commonwealth or State Department or other organisation, then the terms of s 183(1) will be satisfied.

63    Copyright material will be used for the purposes of a Department or other organisation of government if used as part of, or in order to facilitate or benefit, its activities. Those activities may well extend beyond the performance of statutory duties or powers. The legitimate undertaking of government departments and other organisations may include, in addition, a wide range of preparatory, incidental, educative, policy-making, and other related tasks. We agree with the primary judge that (at J[74]):

Governments and their departments such as the representative government clients not only engage in the over-the-counter provision of services to the public (such as drivers licences, passports and social security payments). They are also responsible for managing the provision of services in a broader sense, extending to back-office tasks including policy making, internal decision making, and the preparation of information for public release.

64    It follows that we can discern no basis in the statutory language or context that would justify adopting the narrow meaning for which the appellant contends. Indeed, the degree to which the construction urged by the appellant is unjustifiably cramped may be seen in the facts that:

(a)    The appellant’s construction would deny the uncontroversial operation of the equivalent words considered in Pfizer, and restrict their meaning to that aspect that was in dispute. In other words, in that case, it was accepted by both parties, and all members of the House of Lords, that the use of a patented invention for the internal activities of government departments was within the immunity created by s 46(1) of the Patents Act 1949 (UK); the dispute concerned whether the immunity also extended to the provision of products to the public. The appellant contends for a construction advanced by no one in Pfizer: that the words “for the services of the Crown” mean only the provision of benefits to the public.

(b)    The appellant’s construction would also be inconsistent with the recommendation of the Report of the Spicer Committee, in fulfilment of which s 183(1) was enacted. That Report recommended a broader immunity than that implemented in consequence of the Report of the Gregory Committee. It will be recalled that that latter Committee had recommended that the Crown’s right to use copyright material ought to be limited to the right to reproduce copyright material in connection with the equipment of the Armed Forces, and potentially also for civil defence and essential communications. The appellant’s construction would exclude those uses of copyright material. To do so is plainly inconsistent with the intended scope of the immunity to permit the use of copyright material “for any purposes of the Crown”.

(c)    A range of what might be considered incoherent distinctions would be required to be drawn. For example, the appellant contended that the copying of newspaper articles for use by the Department of Foreign Affairs in making decisions about the content of travel advisory warnings would not be permitted by s 183(1), but the publication of an extract from an article in a travel advisory warning would be allowed. It is difficult to discern any rational reason why s 183(1) would have been intended to permit the use of copyright material in the latter but not the former circumstances.

65    Accordingly, we reject the construction advanced by the appellant, that would limit the scope of s 183(1) to direct uses of copyright material in the provision of services to members of the public, and confirm that the section authorises any use for the purposes of the Crown.

APPLICATION TO THE FACTS OF THIS CASE

66    We turn, finally, to consider the application of s 183(1) to the particular facts of this case. There was very little dispute about the underlying facts before the primary judge, and no challenge was made to his Honour’s factual findings on this appeal. In those circumstances, we are content to adopt his Honour’s findings of fact at J[9]-[37], and repeat only those matters necessary to make our conclusions comprehensible.

67    The parties agreed that three particular clients of the respondent were representative of its government clients as a whole; namely, the Commonwealth Department of Social Services, the National Archives of Australia, and the Australian Capital Territory. Each of those three clients was agreed to be “the Commonwealth or a State” for the purposes of s 183(1). (We pause to interpolate that s 10(3)(n) of the Act provides that a reference to a State shall be read as including a reference to the Australian Capital Territory and the Northern Territory.) The respondent was provided with a signed authority by each client, warranting that the client required the respondent to do acts comprised in the copyright of the appellant for the services of the Commonwealth or State, as relevant.

68    The evidence in the proceedings was not directed to the particular uses made by the three representative government clients of media monitoring services (let alone their use of the appellant’s copyright content), but rather to the general way that government bodies use media monitoring generally. The primary judge accepted that “most, if not all, government departments use some form of media monitoring service” (at J[29]), and that they perceive it to be “critical” that government “has full and broad access to media coverage to perform its role and implement policy effectively” (at J[31]).

69    Insofar as State government departments and agencies are concerned, the evidence accepted by the primary judge included that (at J[31]):

[I]t would be very difficult for state governments to obtain a complete understanding of the issues affecting the relevant interests in the community, and the particular portfolio interests of a state department or agency, without media monitoring. … [T]he positions of key stakeholders can evolve over time and are often made known through subtle public statements to the media, and the ability for government advisors to be able to read these, through ongoing access to transcripts and reports from media monitoring gives them the opportunity accurately to anticipate the development of an issue and advise accordingly. … [D]ue to the increasing volume of media content in both digital and hard copy formats, as well as the rapid pace at which media monitoring for government needs to be conducted to fulfil its purpose, it is generally not feasible for most government entities to conduct media monitoring in-house.

70    The evidence that was accepted relating to the Commonwealth was to a similar effect, with that media monitoring being used (at J[32]):

… to help brief senior government officials and Ministers for possible media enquiries and to brief them about the manner in which various relevant issues were being portrayed in the media; to assist in investigations and enforcement action, including to detect potential regulatory breaches; to gauge responses reported in the media to policy development and initiatives; and to gauge the effectiveness of government information campaigns by reviewing media reports.

71    Overall, there was no challenge to the primary judge’s finding that “it is important to the performance of the functions of the representative government clients to keep abreast of what is reported in the media” (at J[105], and see at J[106]-[108] more generally).

72    There were two factual matters that the appellant considered to be of particular importance.

73    The first was that the media monitoring services were not used in the provision of outward-facing services. This was not in dispute. That is to say, the respondent did not contend that any of the otherwise infringing acts it performed were done as part of (or for the immediate purpose of preparation for) the delivery of a service to the public. On our construction of s 183(1), that fact is of no significance, and the evidence demonstrates plainly that the vast bulk of the copying done by the respondent was unquestionably done “for the services of the Commonwealth or State”. Indeed, if it is accepted that that formula does not limit the scope of the immunity to acts done in the provision of a service to the public (or done for the immediate purpose of preparation for the delivery of such a service), then we do not understand the appellant to dispute that, subject to the issue to which we are about to turn, the respondent’s copying was done “for” the purposes of each representative government client (or, to use the statutory term, service).

74    The second matter of suggested significance related to what was referred to as “redundancy” in the respondent’s copying of the appellant’s copyright works. In short, the appellant contended that a significant amount of copyright material was unnecessarily copied, in the sense that it was not provided to, or even reviewed or searched for the purposes of determining whether it should be provided to, a government client. This contention formed the basis of ground 6 of the notice of appeal.

75    In order to understand this submission, it is convenient to summarise the way that the respondent went about performing its contracts with the government clients by quoting from the appellant’s written submissions (which were in turn a summary of the primary judge’s findings at J[22]-[23]):

[The respondent’s] media monitoring process involved copying the entire broadcast of the Foxtel Sky News Channel and Sky News Regional Channel, 24 hours a day, 7 days a week, on a desktop computer. That copy was held for two weeks and then deleted. Prior to its deletion, portions of this copy, corresponding with the Sky News broadcast between 5am and midnight every day of the week, were transferred from the desktop computer to [the respondent’s] central storage platform. That transferred copy was held for 395 days before being deleted. Voice-to-text (VTT) software then processed the transferred copy corresponding to the following time periods: (a) Monday to Friday: 5.30am to midnight; (b) Saturday: 6am to 10.30am, 12pm to 12.30pm and 11pm to midnight; and (c) Sunday: 6am to 12.30pm and 7pm to 10pm. This VTT process allowed [the respondent’s] software to search the copied broadcast content (over which the VTT was run) by keyword. Based on keywords allocated by [the respondent] to each government client, the copied broadcast content containing particular keywords was ‘tagged’ by [the respondent’s] software, and made accessible to the client to whom that keyword related, within the 395 day window in which the copy of the subset of the Sky News broadcast was stored on [the respondent’s] central storage platform.

…

As for [the appellant’s] website content, [the respondent] used web crawlers to copy the entire Sky News website. That content was processed to determine whether any keywords were present. If none were, the content was deleted. If keywords were detected, the content was ‘tagged’ to the client’s account to whom the keyword related and those copies were stored in [the respondent’s] central storage platform for 12 months. A portion of that copied content was then communicated to the client, together with a URL link to the publisher’s website.

76    As this summary demonstrates, the respondent copied substantial portions of the appellant’s copyright material which it did not use, and which was never provided to or accessed by its government clients. As the appellant submitted in relation to the broadcast content:

[H]ours of content were copied each day which were never going to be used by [the respondent], because it was never transferred from the desktop computer to the central storage platform. Even in respect of that portion which was copied across to the central storage platform, again, much of what was copied was not used. … [The respondent’s] software was not able to undertake the ’tagging process’ with broadcast content which had not been converted to text. However, the VTT process was only run over parts of the copy of the broadcast which had been transferred to the central storage platform.

77    There was a dispute about the extent to which it could be said that content that was copied was, at that time, never going to be used. There was evidence, accepted by the primary judge (see J[26]), that it was possible for government clients to make specific requests for a particular broadcast segment that was not captured in the general time periods otherwise reviewed and tagged. In such cases, if the recording had not already been deleted, then it could be obtained and provided to the client. The appellant submitted, however, that there was no evidence in the proceedings that the three representative government clients had ever made such a request.

78    The appellant posed this example to illustrate its submission:

[A]ssume for the sake of argument that Sky News broadcast, at 3am on a Tuesday, a musical work in respect of which copyright subsists and is owned by someone other than [the appellant]. That musical work is played once at that time and not again. That person’s copyright would be infringed by [the respondent] copying a broadcast of the musical work on the Sky News broadcast, however, the copy of that musical work would never make its way off [the respondent’s] desktop server, and thus never be used by anyone before being deleted. If one was considering that act alone, as one must, how could it be said to that copyright owner that its work was copied ‘for the services of’ the Crown? The Crown would never make use of that work; it would never even be provided to the Crown to use. If that is so with respect to that one act, the same must hold in respect of all acts comprised in the copyright; [the respondent] cannot be in a better position for conducting mass infringement than targeted infringement.

79    In relation to that issue, the primary judge said this (at J[109]):

It may be that a better system is available which involves less copying and less redundancy. But that is not, of itself, a disqualifying factor in the operation of s 183(1). The language of that section does not introduce a notion of fair dealing, akin to that present in Part III, ss 40, 41, 41A and 42 of the Copyright Act. The broad and facilitative language of s 183(1) leaves it open for such copying activities, provided that they are done for the services of the Commonwealth.

80    As the primary judge recognised, the critical question is whether copying is done “for” the services of the Crown. The fact that material is copied that is not provided to the Crown does not mean that it was not copied “for” the Crown. Here the so-called redundant copying still satisfies the statutory test for the simple reason that it was the means by which the contracted service was provided to the Crown.

81    We do not consider that it was necessary for the respondent to prove that the (or even a) purpose of the redundant copying was to enable government clients to make specific requests for broadcast segments falling outside the time periods within which content was reviewed as a matter of course. It is enough that the purpose for which the copying was undertaken was in order to perform the contracted task (and it was not suggested here that there was any other reason for which the redundant copying was carried out). The section does not limit the scope of the permission to those otherwise infringing acts that represent the most efficient means of achieving an objective, or otherwise require any particular objective to be pursued in such a way as to minimize the use of a copyright owner’s intellectual property.

Conclusion

82    It follows that we consider the primary judge’s conclusion that the respondent did not infringe the appellant’s copyright was correct, and the appeal must accordingly be dismissed with costs.

Associate:

Dated:    10 April 2025