FEDERAL COURT OF AUSTRALIA

Australian News Channel Pty Ltd v Isentia Pty Limited [2024] FCA 363

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant must pay the respondent’s costs, to be taxed if not agreed.

3.    The parties have liberty to apply within 14 days from the date of these orders to seek amendment to these orders in respect of costs.

4.    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.

5.    Within seven days, 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 Burley 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

BURLEY J:

1.    INTRODUCTION

1    The question in this case is whether the respondent, Isentia Pty Ltd, has provided media monitoring services to its government customers “for the services of the Commonwealth or State” and is thereby entitled to the benefit of the protection afforded by s 183(1) of the Copyright Act 1968 (Cth).

2    Section 183(1) provides:

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.

(Emphasis added)

3    The applicant is Australian News Channel Pty Ltd, which through Sky News Australia delivers Sky broadcast content via subscription television channels and a free-to-air regional television channel, and Sky online content via the Sky News Website. The Sky broadcast content and Sky online content are together referred to as the Sky News content. The applicant seeks declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) to the effect that acts done by the respondent in respect of its copyright content do not fall within the meaning of s 183(1) of the Copyright Act.

4    The respondent provides media monitoring services. This broadly involves searching for and extracting, for the supply to its clients, parts of news and other media items that are of interest to them. The process of performing this task involves the wholesale copying of published articles and broadcast content.

5    The issue in dispute is whether, in supplying its media monitoring services to various government entities, acts done by the respondent (referred to below as otherwise infringing acts) do not infringe the copyright owned by the applicant because “…the acts are done for the services of the Commonwealth or State” within s 183(1). For the purposes of these proceedings, there is no dispute between the parties that the applicant is the owner of the copyright in the works identified, that the respondent was authorised by the relevant government entities to perform the acts or that those acts would, but for the operation of s 183(1), infringe copyright in the works.

6    The parties adopt different positions as to the meaning of the phrase “for the services of the Commonwealth or State”. The applicant contends that an otherwise infringing act falls within s 183(1) only if there is a direct connection between the act comprised in copyright and the provision of a governmental service to the citizenry. On the other hand, the respondent submits that otherwise infringing acts done by a person authorised by a governmental body for the benefit of the government are within the protection afforded by s 183 of the Copyright Act.

7    The parties have co-operated to provide a statement of agreed facts pursuant to s 191 of the Evidence Act 2011 (Cth) which crystallises much of the evidentiary basis for consideration of the question. In addition, the respondent relies on an affidavit sworn by Emma Rossi, a Communications Advisor, an affidavit sworn by Mark Duffy, a Consultant with significant experience working in the public service and two affidavits affirmed by Russ Horell, the Chief Commercial Officer of the respondent. Only Mr Horell was cross examined.

2.    FACTUAL BACKGROUND

2.1    The agreed facts

8    Below is a summary of matters drawn from the statement of agreed facts.

9    The applicant has the right to sue for infringement of copyright in the Sky News content.

10    The respondent provides media monitoring services to government and non-government clients, which involves: (a) identifying media items that are relevant to its clients and informing them of those items, thereby reducing the need for the client to read or watch media to identify coverage of interest; and (b) making a copy of media items and storing them in its computer systems.

11    When a client engages the respondent, it and a member of the respondent’s account management team discuss what the client requires and, based on that discussion, together develop a client brief. This involves translating client requirements into a set of research terms and specific criteria used to identify media content that is relevant to the client. The brief is then converted into algebraic search terms (that is, Boolean strings) for the purpose of searching the respondent’s systems. The client brief is updated from time to time.

12    In some cases, the respondent may also give the client access to particular media items, being particular news articles or stories, selected by the client from the set of items that have been identified as relevant to the client.

13    In the case of broadcast media, which includes the Sky broadcast content, the provision of a media item to a client will take the form of:

(a)    the provision of a video and audio stream of the item in question (for example a video and audio stream of a news story);

(b)    the provision of an automated transcript of the segment of a broadcast generated using voice-to-text (VTT) software; and

(c)    if requested, and for an additional cost, the provision of a human generated transcript of the item in question.

14    In the case of online news content, which includes Sky online content, the provision of the item will take the form of the provision of a portion of the online article accompanied by a link to the publisher’s website where the media item has been published online. That portion will be an extract of the online article comprising the headline, citation and up to the greater of 50 words or 255 characters or the first sentence of the article. If an online news item contains an associated media broadcast item such as a video, this is not monitored by the respondent or provided to the client. An example of a portion is set out below at [20].

15    The respondent has as its clients a range of Commonwealth, State and Territory government departments and statutory authorities. The following three representative government clients have been selected for the purpose of these proceedings, each of which have provided the respondent with signed authorities, each of which is expressed as having been made under s 183(1) of the Copyright Act. The first two of the representative government clients are agreed to fall within the meaning of “the Commonwealth” and the third falls within “a State” for the purpose of s 183(1):

(a)    the Commonwealth Department of Social Services (DSS);

(b)    the National Archives of Australia; and

(c)    the Australian Capital Territory (ACT).

16    The authorities provided to the respondent each warrant that the representative government client requires the respondent to do acts comprised in the copyright of works and other subject-matter, (including the Sky News content) for the services of the Commonwealth or State (as relevant). Each of the authorities is annexed to the statement of agreed facts.

17    A client brief was developed by the respondent for each of the representative government clients and updated from time to time. Copies of the relevant client briefs are also annexed to the statement of agreed facts.

18    For the purpose of these proceedings, fifteen samples of Sky News content, monitored and provided by the respondent to the representative government clients, were selected as sample Sky News content for exemplar one-week periods in each of August, September and October 2022. The sample Sky News content includes broadcast items and online content such as literary works, television broadcasts and cinematograph films.

19    For present purposes it is sufficient to identify only the first sample Sky News content identified by parties.

20    For sample 1, the representative government client of the respondent is the ACT. It is a two-page Sky News article entitled “Albanese Government launches strategic review into the Australian Defence Force” published on the Sky News Website on 3 August 2022. The sample was made available to the ACT via the respondent’s proprietary software product, Mediaportal, in the following form:

21    For the purposes of these proceedings, the parties agree that, but for the operation of s 183(1) of the Copyright Act, in the period from August to October 2022, copyright in works of the types identified in the sample Sky News content would have been infringed based on the matters set out in it.

22    In relation to the Sky broadcast content, the following steps are involved in the provision by the respondent to the representative government clients of its monitoring services:

(a)    The respondent makes a copy of the entire broadcast of the Foxtel channel Sky News Australia and the free-to-air channel Sky News Regional, 24 hours a day, seven days per week;

(b)    The copy is captured on a satellite card and stored locally (as a digital file) on a desktop computer for two weeks before being automatically deleted;

(c)    Digital files in respect of Sky broadcast content that airs between 5am and midnight, seven days per week are transferred to the respondent’s central storage platform in Sydney (stored files) and held for 395 days, before being automatically deleted. This is referred to as the respondent’s video archive. Sky broadcast content that airs between midnight and 5am is not transferred to the respondent’s central storage platform. Any video files accessed by the respondent or a representative government client are provided to the user in streaming mode directly from the central storage platform without further copies being made by the respondent;

(d)    The stored files in respect of content that airs at the times set out below are processed through VTT software to generate an automated transcript for each segment in the broadcast (a “segment” being a part of a television program such as an individual news item):

(i)    Monday to Friday: 5.30am to midnight;

(ii)    Saturday: 6am to 10.30am, 12pm to 12.30 pm, 11pm to midnight; and

(iii)    Sunday 6am to 12.30pm; 7pm to 10pm;

(e)    The VTT text files are saved on the respondent’s central storage platform to enable the respondent to search the files and identify keywords matching a representative government client’s search criteria;

(f)    Any result responsive to the representative government client brief is “tagged” to that client’s account and they are able to access the VTT text files and video files tagged at any time during the 395 days they are stored in the respondent’s central storage platform.

23    In relation to the Sky online content, the following steps are involved in the provision by the respondent to the representative government clients of its monitoring services:

(a)    A copy is made of the entire text content in news items published on the Sky News Website. Online text content is scraped using web crawlers and delivering to the respondent as individual clips via a secure feed;

(b)    Each clip is processed by software to identify keywords matching a representative government client’s search criteria and any clip responsive to the client brief is tagged to the client’s account and stored for about 12 months before being deleted. Clips that do not match any client briefs are deleted from the respondent’s system and are not communicated to any client;

(c)    A portion of any responsive clip is available for communicating to the representative government client, together with a URL link to the publisher’s website where the online item is published. When a client views the communicated portion of the online item, they are viewing the text from the respondent’s central storage platform, meaning that no further copy is made by the respondent.

24    The representative government clients can only view content that has been tagged to their account. However, a client need not access all tagged content. Content can be accessed either via Mediaportal or by receiving “Media Alert” emails.

2.2    Evidence of Mr Horell

25    The affidavit evidence of Mr Horell addresses an aspect of the process undertaken by the respondent to provide its media monitoring services (discussed above). He gives evidence that the step of making a copy of the entire broadcast of the Foxtel channel Sky News Australia and the free-to-air channel Sky News Regional is taken at an operational level “to minimise the risk of technical failures and errors”. He further gives evidence that by transferring digital files of the content that airs between 5am and midnight each day, this reduces the risk of technical failures that might result if the process was to stop and start more frequently or to transfer files at different times on different days. In cross examination it was revealed that Mr Horell had no relevant technical knowledge and was unable to explain the basis for this evidence, other than that he had been told by others that the broadcast is continuously recorded and that this was done for technical reasons cited in his affidavit. I give this evidence little weight.

26    Mr Horell also gave evidence that broadcast content stored on the respondent’s central storage platform that has not been subject to the VTT process can nonetheless be accessed by a representative governmental client if requested. From time to time, representative government clients will request a particular news or other item that has not been tagged to that client and has not been subject to VTT in the ordinary course.

2.3    Governmental use of media monitoring services

27    The evidence of Ms Rossi and Mr Duffy addresses the use made by government departments of media monitoring services. The evidence is not directed to the representative government clients or the sample Sky News content. Rather, it draws on the extensive experience of Ms Rossi and Mr Duffy working in various arms of government to identify, in a general sense, the utility of media monitoring services.

28    Mr Duffy has nearly 30 years of experience in the public service across government departments and entities in New South Wales and South Australia. He was the Chief Policy Advisor and Joint Chief of Staff to the NSW Treasurer from 1995 to 1998, worked in a range of roles connected to the NSW Government between 1998 and 2003 including as a Board Member of Pacific Power, and Trustee Director of SAS Trustee Corporation. In addition to other roles, from 2006 until 2013 he worked as a Director-General or Deputy Director-General in various NSW Government Departments and from 2016 until 2022 occupied a variety of senior positions within the South Australian Government.

29    Mr Duffy gives evidence that in his experience most, if not all, government departments make use of some form of media monitoring service. He was not responsible for formulating search terms and liaising with external third-party organisations providing such services but received reports containing relevant media clips and reviewed those as part of performing his various roles.

30    Mr Duffy’s use of the output of media monitoring was to assist his understanding of the direction of public policy conversations and the evolving positions of relevant key stakeholders, both within and outside government. This was in order to provide analysis and advice to assist in: shaping communications to the Ministers to whom he reported regarding key issues and the views of key stakeholders; formulating policy to address issues in the community; developing effective public communications; responding to media stories which were incorrect or misleading; deciding on whether to pursue certain policies based on media and community feedback; understanding how issues were being received in real time within the community around the country; and understanding media and community sentiment in relation to key issues.

31    In Mr Duffy’s experience, it is critical that state government, and government more broadly has full and broad access to media coverage to perform its role and implement policy effectively. The media, in his view, is one of the main forums where technical and community perspectives about key issues are discussed. He considers that it 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. He considers that the 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. Mr Duffy gives examples based on his experience. He concludes that due to the increasing volume of media content in both digital and hard copy formats, as wells 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.

32    Ms Rossi is a journalist and communications advisor. She has held roles with two Commonwealth agencies; from 2011 until 2018 she was a Media and Communications Manager with the Australian Communications and Media Authority (ACMA) and from 2018 until 2022, she was a Director of Strategic Communications at the Australian Competition and Consumer Commission (ACCC). Her role was more hands-on that of Mr Duffy in organising media monitoring services from third parties, including the respondent. She gives evidence that she used media monitoring services for a number of purposes including: 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. She also gives specific examples of her uses of media monitoring services.

2.4    The agreements and client briefs

33    The respondent relies on various documents to support its position.

34    The respondent gives, as an example of the services that it provides to the ACT, the Standard Conditions of Tender – Services applicable to ACT Government tenders to which is appended a Statement of Requirements for tender from the ACT Government which relevantly provides:

1    OBJECTIVE

1.1    The Chief Minister, Treasury and Economic Development Directorate (CMTEDD), is seeking to appoint an experienced service provider to provide a Whole of Government (WhOG) media monitoring service for the Territory (Services).

2    BACKGROUND

2.1    The Territory aims to communicate and listen as ‘one government’ and adopt a proactive communications and engagement approach resulting in greater community awareness, understanding and satisfaction.

2.2    It is essential to have an accurate understanding of the conversations that are taking place within the community. The Territory wishes to understand:

a) Who is driving the conversations;

b) The nature of the conversations; and

c) On which platforms the conversations are being held.

3    SCOPE OF THE SERVICES

3.1    The Territory is seeking a WhOG media monitoring solution to be able to gather and analyse, in real time, reporting from a wide range of sources which accurately reflects the nature and reach of the public conversations relating to Territory services, policies and projects in traditional and new media – print, broadcast, online and social media.

3.2    The Contractor will provide Services which will be available to Territory Directorates (and their sub-units as listed on the Territory Functions and Services Directory) and also ACT Public Sector Bodies who would seek to participate…

…

3.4    The Services will be grouped by theme. Key spokespeople, policies, projects and emerging issues in each of the themes change frequently and monitoring must remain current. The current themes are:

a) Canberra Community;

b) Economic Growth and diversification;

c) Education;

d) Environment;

e) Emergency Services;

f) Health;

g) Industrial Relations;

h) Land, Planning and Urban Renewal;

i) Supporting Families;

j) Tourism;

k) Transport and Roads;

l) Law and Order; and

m) Ministers and Opposition MLAs.

35    The respondent also refers to the Head Agreement for media services between the Commonwealth as represented by the Department of Human Services, and the respondent. Schedule 2 to that agreement provides for the categories of service to be supplied. [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED].

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37    The materials tendered include the Official Order placed by the DSS pursuant to the above Head Agreement, which broadly includes the provision of these services by the respondent. [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED].

3.    THE SUBMISSIONS

38    The applicant submits that the process by which the respondent procures news content infringes any and all copyright subsisting in the entirety of the applicant’s published or broadcast news content and that the respondent cannot discharge its onus of establishing a defence under s 183(1) of the Copyright Act. It submits that the language of s 183 focuses on copyright subsisting in a work or other subject matter, making clear that the question of whether s 183(1) is satisfied must be focused on each particular copyright work or other subject matter and considered on a case by case basis having regard to that specific work or subject matter, and that a similar analysis ought to be undertaken in respect of each individual act compromised in the copyright. Thus, the particular act comprised in the copyright must be shown to have been used for a particular permitted purpose. It submits the phrase “for the services of” draws attention to what service it is that the governmental body is said to be providing and why the otherwise infringing act is done for that particular service. Given that s 183 relates to governmental bodies, it is clear that the section is focussed on the kind of public services provided by a governmental body to its citizenry. This, the applicant submits, is consistent with ordinary meaning of “services” as “the providing of, or a provider of, a public need, such as communications, transport etc”. The scope of those services is potentially very wide and includes, the applicant submits, traditional activities for government such as defence, foreign affairs, national security and also social services, public health, education and so on, citing Ex parte Australasian Performing Rights Association; Re Australian Broadcasting Commission [1982] ACopyT 2; (1982) 42 ALR 58 at 64 (ABC first instance). However, it submits that there are limits – in ABC first instance, Lockhart J found that the Australian Broadcasting Commission was not the Commonwealth for the purposes of s 183 of the Copyright Act because the services it provided, being broadcasting or television, have never been asserted to be within the province of government.

39    The applicant submits that it cannot be that merely because the respondent provides services which governments use, or which are convenient for the government to have and those governments in turn provide services of the kind embraced by s 183(1) that is sufficient to satisfy s 183(1). That is because s 183(1) connects the otherwise infringing acts to the services by the term “for”, meaning that the act must be done “with the object or purpose of” the services of that governmental body. The applicant contends that to find otherwise would give s 183(1) an essentially unlimited scope. Many businesses may provide things used in the course of the work of government such as cleaners, builders, ink sellers, computer hardware vendors, internet services providers etc. Such providers contribute things that are consumed by government users and, in varying degrees, support or permit the services that governments ultimately provide to their citizens. But it would be beyond the reasonable scope of s 183(1) to suggest that actions undertaken by such service providers were done “for” the services of the Commonwealth or a State.

40    The applicant submits that it is unclear what services the respondent says are being provided by the three representative government clients and why the otherwise infringing acts were done for those services. Having regard to the applicant’s submission set out in [38] above, it considers that this is not a question that can be considered in the abstract, because the analysis must be undertaken copyright work by copyright work (or other subject matter) and act by act; but also because one cannot consider whether an act was done for a service without knowing what the particular service is, citing as examples Pocketful of Tunes Pty Ltd v Commonwealth [2015] ACopyT 1; (2015) 112 IPR 346; and Copyright Agency Limited v New South Wales [2008] HCA 35; (2008) 233 CLR 279 (CAL v NSW).

41    The applicant submits that the respondent’s otherwise infringing acts are not a necessary part of any service the representative government clients provide to the public. The provision to the government of news content, which is the consumption or “use” by government of media monitoring services, is not sufficient to engage the protection of the section. Here, the acts of the respondent are far removed from the provision by government of a service to a citizen; the applicant submits that the provision to government of news content where such content is for the government’s own consumption is too remote to engage the protection of the section. Furthermore, the respondent has not identified the government services it undertakes or contributes to under authority. Nor has it given evidence from a witness from any representative government client to explain what services the client provides or how the otherwise infringing acts are for those services. It is contended that the respondent has not reached the evidentiary threshold necessary for it to rely on s 183 of the Copyright Act as a defence to its infringement.

42    The applicant further submits that, even in the absence of such evidence, it is apparent that a substantial number of the respondent’s otherwise infringing acts cannot on any view be considered to be done for the services of the Commonwealth or a State. That is because, first, the respondent copies the entirety of Foxtel’s broadcast of Sky News Australia, but only a small portion of this is transferred to the respondent’s storage platform and only a subset of this is subject to VTT, which is essential to be able to tag material for a government client. As a result, a substantial amount of copyright material of the applicant is copied but never used by the respondent, let alone any government client. Copies of copyright works and other subject matter made in respect of certain times of day are therefore made for no discernible client-related reasons. Secondly, it is likely that some of those copyright works and other subject matter owned by the applicant will be copied but never “tagged” to a government client. In a similar vein, the respondent copies the entirety of all published news articles on the Sky News Website, but only a subset of these articles will be “tagged”, meaning that certain copyright materials of the applicant will be copied without ever being used by government clients. Thirdly, even in respect of the sample Sky News content which has been tagged to the representative government clients, and is thus nominally of use to them, there are many examples where the materials on their face cannot possibly be relevant to any service the representative government clients could conceivably provide, and thus it cannot have been that the otherwise infringing acts were carried out for the services of the representative government clients. In this regard, the applicant provides several examples. One such example is sample 1 which refers to the former Defence Minister Stephen Smith undertaking a review of the Australian Defence Force, a Federal Government responsibility, not that of the ACT.

43    Ultimately, the applicant contends that an otherwise infringing act will only be done for the services of the Commonwealth or State if there is a direct connection between the act comprised in the copyright and the provision of a governmental service to citizens. In the present case, the applicant submits that none of the gathering of copyright material for the purpose of providing media monitoring could be thought to have a direct connection to the provision of any service by one of the representative government clients to the citizenry. The applicant submits that any contrary construction could include anything that government seeks or would like to have and would be an overbroad construction, especially in circumstances where s 183(1) serves to carve out an exception to the copyright concerned, citing Clunies-Ross v Commonwealth of Australia [1984] HCA 65; (1984) 155 CLR 193 at 199–200; Suatu v Australian Postal Corporation [1989] FCA 88; (1989) 86 ALR 532 at 541 (Gummow J).

44    The respondent submits that acts done by a person authorised by a governmental body for the benefit of the government are within the protection afforded by s 183 of the Copyright Act. It relies on the evidence of Ms Rossi and Mr Duffy to elucidate the manner in which the respondent’s monitoring of media content is central to the operation of modern government. In particular, on a daily basis, government uses copyright material comprised in broadcast and print media in performing core functions of developing, implementing and reviewing policy and briefing Ministers and senior public servants on issues that government needs to address.

45    The respondent disputes that questions of onus arise in the present circumstances where the applicant does not sue for infringement of copyright but rather seeks a declaration by way of test case as to the construction of s 183(1) of the Copyright Act.

46    The respondent submits that the compound phrase “for the services of the Commonwealth or State” is properly understood as a “formula” which is to be understood as a whole in the context of its history. The meaning of a similar phrase “for the services of the Crown” was considered by the House of Lords in Pfizer Corporation v Ministry of Health [1965] AC 512, which was referred to in CAL v NSW, where all five members of the House of Lords agreed that the provision of a benefit to the Crown or its servants was “for the services of the Crown”. It is this understanding that was accepted as the “traditional notion” in Re Australasian Performing Right Association’s Reference; re Australian Broadcasting Commission [1982] FCA 272; (1982) 45 ALR 153 (Bowen CJ, Franki J) at 160 (ABC Full Court) that the phrase “for the services of the Crown” (under consideration in that case) “relates to services used by the Crown or its servants”.

47    The respondent submits that the applicant is incorrect to contend that it is necessary to distinguish between services provided to the Commonwealth or State and those provided by the government to others because the provision of benefits to the Commonwealth or State are within the traditional notion of acts “for the services of the Crown”. The respondent also disputes that there is any need to identify a service being provided to citizens and ask why the relevant potentially infringing act is done for that particular service because it is sufficient that a service or benefit is being provided to the government for the government’s use. However, the respondent contends that there is no need for the government to be providing any service to members of the public at all. The function of s 183(1) is to confer on governments a flexible ability to utilise copyright material in order to enable them to perform their functions while also establishing, as an element of that scheme, a stream-lined process for renumeration.

48    The respondent contends that it is not necessary for it to identify a particular “service” being provided by the relevant government client or identify why the acts within copyright are done for that service, rather the only relevant question is whether the acts within copyright are being done for the benefit of the relevant government client in carrying out its functions.

49    The respondent submits that the monitoring of media content is central to the performance of many governmental functions and has been a practice of government bodies for decades. It is a function that the respondent performs because otherwise its government clients would be obliged to do so themselves, which is a time-consuming task and requires expertise. Each of the agreements between the representative government clients and the respondent in terms emphasises the clear connection between the media monitoring activities and the relevant governmental functions that they support, a point said to be reinforced by the affidavits of Ms Rossi and Mr Duffy.

50    Although the applicant suggests that there is superfluity of copying by the respondent, the respondent contends that that it is not for the applicant to question the appropriateness of the manner in which the respondent conducts its business, and in any event, nothing in the text of s 183 limits the protection afforded only to those acts that are reasonably necessary. Each of the acts by the respondent is for the benefit of its government clients. There is no evidence to support the contention that the copies made are irrelevant to the functions of the representative government clients but in any event, the respondent submits that even if a media monitoring service provides a news item that is not of interest to a client, that does not mean that the activity in providing that service, and all of the acts associated with that activity, is not for the benefit of the representative government clients.

4.    CONSIDERATION

51    For the purposes of this test case there is no dispute that the respondent reproduces in material form (pursuant at least to ss 31(1)(a)(i) and s 36(1) of the Copyright Act) and copies (pursuant at least to ss 86(a), s 87(a) and 101(1) of the Copyright Act) the entirety of every copyright work embodied in the Foxtel’s broadcast of Sky News Australia and every news article published on the Sky News Website. It is unnecessary for present purposes to address, other than by noting, that this would include infringement by way of communication. The central question is one of whether s 183(1) affords protection against a finding of copyright infringement against the respondent in respect of those acts.

52    Statutory construction is a text-based activity, although questions of policy can inform the court’s task of statutory construction: Alphapharm Pty Ltd v Lundbeck A/S [2014] HCA 42; (2014) 254 CLR 247 at [42] (Crennan, Bell and Gageler JJ); Acts Interpretation Act 1901 (Cth) s 15AA. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief, it is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). As Kiefel CJ, Nettle and Gordon JJ explained in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14].:

…This is not to deny the importance of the natural and ordinary meaning of a word ... Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

53    The present task of construction involves consideration of the words “if the acts are done for the services of the Commonwealth or State” in s 183(1) of the Copyright Act.

54    I do not consider that the applicant’s narrower construction of s 183(1) is supported by its legislative history or its text and statutory context. For the reasons set out below, I prefer the construction advanced by the respondent.

4.1    Legislative History

55    Considering first the legislative history and statutory context, Part VII, Div 2 of the Copyright Act, within which s 183 is found, is entitled “Use of copyright material for the Crown”. The expression “the Crown” is defined in s 10(1) to include the Crown in right of a State and the Crown in right of the ACT. Each of the representative government clients falls within the definition of the Crown.

56    The history of the introduction of s 183 into the Copyright Act is referred to in the decision of the plurality in CAL v NSW, parts of which are summarised below. The judgment records that the specific abolition of Crown immunity for copyright infringement in the United Kingdom led to a question of whether Australia would follow suit. If so, it was necessary to investigate a possible basis upon which some or all Crown use of copyright material might occur without risk of infringement; CAL v NSW at [52]–[53].

57    The Report of the Copyright Committee, United Kingdom (1952) Cmd 8662 at [74] (the Gregory Committee Report) noted that in the field of patents, the Crown was permitted to make use of a patented invention for certain purposes, without first obtaining the consent of the patentee, but subject to payment of compensation. No equivalent provision was then present in the Copyright Act. The Gregory Committee Report (at [75]) expressed the view that there may be times when a Service Department, for example, when seeking tenders for military equipment, may need to copy drawings of and documents about equipment in question, without always waiting for prior consent of any owners of copyright. The Gregory Committee Report subsequently recommended that power to reproduce copyright material “for the services of the Crown” should be granted, subject to the payment of compensation, to be settled by the Court failing agreement between the parties, limited, however, to the rights being exercisable only in connection with equipment for the armed forces of the Crown and perhaps also for purposes of Civil Defence and essential communications; Gregory Committee Report at [75].

58    In Australia, the Report of the Copyright Law Review Committee, Commonwealth of Australia (1959) (the Spicer Committee Report) considered the position of the Crown and the question of whether and to what extent the Crown should be liable for copyright infringement; CAL v NSW at [54]. It adopted a different approach to the Gregory Committee Report. The Spicer Committee Report at [404] said:

…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.

(emphasis added)

59    It may be noted that the final form of s 183(1) did not adopt the language of “for any purposes” but rather the language of “for the services”.

60    The second reading speeches introducing the present Copyright Act into the House of Representatives and the Senate are both in relevantly similar form. The Attorney-General said:

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.

(Emphasis added)

(Commonwealth, Parliamentary Debates, House of Representatives, 16 May 1968, 1527 (Nigel Bowen, Attorney-General) at 1536).

61    Having regard to the history of the above, it may be seen that the situation addressed in cases such as Clunies-Ross at 199–200 and Suatu at 541 are somewhat different to the present case, in 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.

4.2    The Legislative regime

62    Section 7 of the Copyright Act provides that, subject to Part VII, the Copyright Act binds the Crown. Part VII, which is entitled “The Crown”, introduces the scheme under present consideration. As noted above, it replaced the former Crown immunity with a scheme whereby, in return for the ability to use the copyright material “for the services of the Commonwealth or State”, payment of compensation is made to the copyright owner.

63    Section 183(2) of the Copyright Act concerns the provision by the Commonwealth of goods in respect of which copyright might reside to another country for the defence of that country. Section 183(3) provides for an authority under s 183(1) to be given by the Commonwealth or State to a person to do any acts comprised in the copyright before or after the acts have been done and notwithstanding that the person has a licence binding on the copyright owner to do the acts. It is uncontroversial that in the present case the respondent has received authorities from each of the representative government clients.

64    Section 183(4) provides that the Commonwealth or State, upon doing any acts within the copyright under s 183(1), must inform the owner of the copyright as soon as possible, unless it appears to the Commonwealth or State that it would be contrary to the public interest to do so. Provision for the content and form of that notice is made by reg 124 of the Copyright Regulations 2017 (Cth). Section 183(5) provides that terms for the doing of such acts are to be fixed either by agreement between the Commonwealth or State and the copyright owner or, in default of agreement, by the Copyright Tribunal of Australia. Section 183(6) provides that an agreement fixing the terms upon which a person other than the Commonwealth or a State may do acts comprised in a copyright is inoperative with respect to doing acts falling under s 183(1) unless it has been approved by the relevant Minister for either the Commonwealth or the State.

65    Section 183(7) provides that where an article is sold, and the sale is not, by virtue of s 183(1), an infringement of copyright, the purchaser and any person claiming through the purchaser is entitled to deal with the article as if the Commonwealth or State were the owner of that copyright.

66    Under s 183(8) an act done under s 183(1) does not constitute publication of a work. This preserves for copyright owners the running of time in respect of the first publication. It also operates to preserve the ownership of copyright in works or other subject matter which otherwise would vest in the Commonwealth or a State: CAL v NSW at [65].

67    Section 183(9) deems for any of the preceding subsections in s 183 that an exclusive licensee is in the same position as the owner of copyright.

68    Section 183(11) (there is no s 183(10)), in recognition of the separate statutory licence arrangements for educational uses, provides that reproduction, copying or communication of a work for the educational purposes of an educational institution of, or under the control of a State is "deemed not to be an act done for the services of … that State". Section 113R of the Copyright Act sets out a separate equitable remuneration system with respect to use by educational institutions. In CAL v NSW the Court (at [66]) noted that section 183(11) emphasises the similarity of purpose in the different statutory licence provisions.

69    The term “government copy” is defined in s 182B to mean a reproduction in a material form of copyright material made under s 183(1). Sections 183A to 183F apply to government copies and provide for payment of equitable remuneration on the basis of sampling, rather than individual notices to copyright owners, where a declared collecting society (under s 153F) is operating: CAL v NSW at [15]. In this regard, s 183A operates as an exception to the scheme set out in ss 183(4) and (5).

70    The scheme of Part VII reflects a legislative intention to recompense copyright owners for use by the Crown of their works by the imposition of an ex post facto scheme for payment which obviates the need for the Crown to seek permission to use the works in advance of that use. The scheme, when understood against the legislative history to which I have referred, was 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. So understood, s 183(1) may be understood to have a broad and facilitative purpose.

4.3    Construction of section 183(1)

71    That view is, in my view, supported by the text of s 183(1).

72    Having regard to the context of where the word is used in s 183(1), it is apparent that the preposition “for” is to be understood to mean “with the object or purpose of” (Macquarie Dictionary (8th ed), first definition) such that the otherwise infringing acts are done with the object or purpose of the services of the Commonwealth or State. Put another way, the otherwise infringing acts must be done to “…suit the purposes or needs of, or be used in connection with” (Macquarie Dictionary (8th ed), second definition) the services of the Commonwealth or State. This language does not naturally carry with it the limitations that the applicant seeks to impose.

73    The noun “services” is defined in the first three definitions of the Macquarie Dictionary as “1. an act of helpful activity. 2. the supplying or supplier of any articles, commodities, activities, etc., required or demanded. 3. the providing of, or a provider of, a public need, such as communications, transport, etc.”

74    Accordingly, in normal parlance, “services” when understood in the context of governmental services will be understood to include the supply of articles or services by the Commonwealth (or a State). This would encompass the broad sweep of activities in which government may engage. Acts done “for” the supply of such services are likely to include steps taken in connection with the work of the government entity concerned. A modern understanding of that work involves recognition that such work is multifaceted. The evidence of Mr Duffy and Ms Rossi expands on what might be regarded as generally known. 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.

75    The question posed in the present case involves consideration of whether such services are to be understood to be confined to outward facing functions such as the issuing of a passport, the provision of teaching to students, the building of roads or the imposition of fines or penalties or whether they would include activities undertaken by employees within government that enable them to undertake those tasks, which may be described as internal or indirect activities. One example given by the applicant in submissions is of the use of a background image on the pages of a passport issued to a citizen. If that image is an otherwise infringing work, the applicant accepts that it would fall within s 183(1). However, it submits that a design company pitching ideas to the Commonwealth about what images to use when passports are made would not, such that the design company would be obliged to obtain prior permission to propose such an image. The applicant contends that were the respondent’s submissions accepted, then government would have free reign to copy and communicate any copyright image without infringement.

76    However, in my view the language of “acts done for the services of the Commonwealth or State” provides no intrinsic connotation limiting the type of acts to those done for the outward facing or end-use services provided by the Commonwealth or State. 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. The language of the section does not support the notion that there must be a “direct” connection between the act comprised in the copyright and the provision of a governmental service to citizens. Acts done that assist a government department to perform its proper functions will be no less for the services of the government because they have an indirect, back office or preparatory role.

77    The applicant contends that the opening words in s 183(1), by referring to “a” work or other subject matter, demonstrate that the question of whether the section is satisfied must be focussed on each particular copyright work or other subject matter and considered on a case-by-case basis having regard to that specific work or subject matter. However, in my view that language instead draws attention to the multiple potential types of copyright interest to which the section applies. It does not in every case require that the otherwise infringing act be identified, singled out as the “act” and cross matched with a service. The requirement is that the otherwise infringing acts be done for the services of the Commonwealth or State. How that is established will be a matter for case-by-case determination, but s 183(1) does not in terms call for a granular copyright work by copyright work (or act by act) analysis. In this context it may be noted that section 183(5) requires that where an act comprised in copyright has been done under s 183(1), the terms for the doing of the act are to be as agreed or, in default of agreement, as fixed by the Copyright Tribunal. As the obiter dicta remarks made by the majority in ABC Full Court at 161 recognise (to which I refer below), it would be impractical for such a scheme to operate in an act-by-act way, where multiple copyrights may be affected by a single reproduction.

4.4    Judicial consideration of similar language

78    Several cases have referred to provisions in similar terms to s 183(1) of the Copyright Act. Whilst neither party suggests that these cases are binding upon this Court, with one exception, being the minority view in Pfizer, none in their reasoning provide support for the limitations proposed by the applicant.

79    In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, Barwick CJ considered the application of s 125 of the Patents Act 1952 – 1960 (Cth). The plaintiff asserted infringement of a patent entitled “Railway Vehicle Body and Truck Central Bearing” by the Commissioner for Railways. The defendant contended that the proceedings were an abuse of process because of the operation of s 125 which relevantly provided that at any time after an application for a patent has been lodged or a patent has been granted “the Commonwealth or a State, or a person authorized in writing by the Commonwealth or a State, may make, use, exercise or vend the invention for the services of the Commonwealth or State…”.

80    Barwick CJ said 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 recognises 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….Subs-section (8) of s 125, in providing that no action for infringement shall be brought for what would otherwise be an infringement of the letters patent, emphasizes the clear intention of sub-s (1) and with sub-s (7) provides a means of securing the untrammelled use of the invention by the Governments and the authorities of the Commonwealth and the States. On the other hand, sub-ss (5) and (6) ensure 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.

(Emphasis added)

81    The Court continued:

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 within the meaning of …s 125(1). One could scarcely imagine that sections such as ss 125 and 132, with their evidence 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.

82    It may be seen that the Court considered that s 125 was to have a broad and facilitative effect, ensuring that the Crown would have “untrammelled” use of the invention where it is for the benefit of the services of the Crown. That benefit included the Commissioner for Railways authorising third parties (who were also defendants) to use the patented invention. Such authorisation necessarily would extend to use of the invention in designing and building prototypes to ultimately supply railway carriages that contained the invention. It is difficult to conceive that such use would not include building of failed prototypes that never made it into final stages, even if such prototypes fell within the scope of the claimed invention.

83    In CAL v NSW the plurality referred to the decision of the House of Lords in Pfizer noting that the words "for the services of the Crown" as applied in that case as being a formula “of some antiquity”.

84    In Pfizer, the House of Lords addressed s 46(1) of the Patents Act 1946 (UK) which provided that:

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 …provisions of this section.

(Emphasis added)

85    The case concerned the provision of the antibiotic, tetracycline, which was used in the treatment of patents in the National Health Service (NHS). The respondent Ministry had invited tenders for the supply of the drug from private firms and awarded the tender to a pharmaceutical company which obtained supplies of the antibiotic from Italy. The respondent authorised the company to make, use and exercise the invention under the provisions of s 46 of the Patents Act 1946 (UK) to fulfil the contract. The appellants sought declarations that the respondent had no power under s 46(1) to do so. An issue was whether the making or supply of the drug by a third party for use in the treatment of patents amounted to use of the drug “for the services of the Crown”. The appellants argued that it was not, because the drug was being used for the benefit of patients and not for the benefit of any service of the Crown. The respondents argued that the drug was to be used in hospitals for the services of the Crown because it was used by servants of the Crown in performance of their duties, and it was irrelevant to consider who benefits by or from such use.

86    Lord Reid noted (at 533) that “the services of the Crown” in the parlance of the day extended to the armed services, the Civil Service, the foreign colonial and consular services, the Post Office and perhaps other. Lord Reid indicated that there are now considerably more government activities which are staffed and operated by servants of the Crown and are subject to the direction of the appropriate Minister. However, it was not in contest that the hospital service fell within the phrase “services of the Crown”. The real controversy concerned what was meant by “for the services of the Crown”. Lord Reid rejected the notion that there is a relevant dichotomy between the provision of a patented article for the benefit of the department or service which uses them and the provision of such an article for the benefit of someone outside the department or service who may derive benefit from the use. He observed (at 534) that most, if not all activities of government departments or services are intended to be for the benefit of the public, and few can be regarded as solely, or even mainly, for the benefit of the department or members of the Crown entity. He went on at 535:

It appears to me that the natural meaning of use for the services of the Crown is use by members of such services in the course of their duties. Sometimes, as in the case of the armed services, that use will or is intended to benefit the whole community: sometimes such use will benefit a particular section of the community: and sometimes it will benefit particular individuals. I cannot see any good reason for making a distinction between one such case and another. It is true that the proliferation of Government services may have impaired the protection given to inventors by patents, by increasing the number of cases in which patents can be used by the Government without the consent of the patentee. But if that has created any legitimate grievance it is for Parliament to provide the remedy.

(Emphasis added)

87    Lord Evershed had a similar view. He considered (at 543) that there is not a true antithesis between services of the Crown in the sense of services related to the functions of government as such and services of the Crown in the sense of the provision of facilities for general public benefit. The Ministry of Health was, by statute, founded for the promotion of the health of the people of England and Wales and a patented process is used “for” the services of the Crown if it is used by a department of government “for the fulfilment of the duties laid upon the Government by the legislation creating and regulating the Ministry of Health”.

88    In adopting a similar position, Lord Upjohn addressed (at 551) a ‘floodgates’ argument advanced by the appellants, which was that if the phrase “services of the Crown” was not limited to meaning any government department or other person duly authorised under s 46(1) to use or exercise any invention for the benefit of departments of the Crown, then the Government would be authorised to take any invention for the purpose of any function of a department of the Crown, which would impose no limit on the Crown’s authority under s 46. He found that if one can discern in the National Health Service Act something which can properly be described as one of the “services of the Crown”, then the relevant Government department must have power to exercise the authority in s 46, notwithstanding that the prime beneficiaries are members of the public and not doctors or nurses, saying at 552:

…Such user is authorised because this particular service of the Crown provides… for their better health. Necessarily it can only be carried out by improving the health of the individuals attending the National Health hospitals.

89    In the context of the statutory usage in Pfizer, Lord Reid considered that services of the Crown extended to government activities staffed and operated by servants of the Crown and subject to the direction of the appropriate Minister. Lord Reid expressed the view (at 535) that the natural meaning of “use for the services of the Crown” is use by members of the public service in the course of their duties, and that sometimes such use will or is intended to benefit the community as a whole, portions of a community or particular individuals. Lord Evershed (at 543) and Lord Upjohn (at 552) expressed similarly expansive views as to how s 46 should be understood.

90    It might be seen that the majority view of the expression was that it was broad. However, the applicant is correct to point out that on its facts the decision is quite narrow. The decision being that the supply of a pharmaceutical product to the NHS for administration to patients is a use “for the services of the Crown”.

91    The minority view held by Lord Pearce and Lord Wilberforce was that the approach of the majority was too wide and would make too great an incision into the monopoly right granted to the patentee. They considered that the phrase is to be understood to mean that the use must be by the Crown or its servants and that it must be for the benefit of the Crown or its servants. This view was made clear having regard to the nature of patent rights, which confer a monopoly on the selling of the patented article, and that the limited right reserved by the Crown is to enable it to make use of the article for its own benefit and not to enter into the field of supplying the article to the public, in competition with the patentee.,

92    In CAL v NSW the issue was whether the State of New South Wales had a licence to reproduce certain survey plans and to communicate them to the public, independently of the scheme prescribed in s 183 of the Copyright Act. The appellant contended that s 183 provides for a statutory licence, which leaves no room for the implication of a licence to copy the plans or communicate them to the public, there being no necessity for an implied license when there was an express statutory license available. It sought remuneration on equitable terms as a relevant collecting society pursuant to the scheme in ss 183A – 183F of the Copyright Act. The State contended that in the circumstances in which the survey plans were prepared, an implied licence arose independent from the operation of s 183 and that this should be permitted to govern the arrangements for the reproduction of the copyright works in question. The High Court found in favour of the appellant.

93    The High Court noted that s 183(1) followed the form of provisions under Pt XIV of the Patents Act 1952 (Cth) (now Ch 17, Pt 2 of the Patents Act 1990 (Cth)), thereby adopting the recommendations of the Spicer Committee Report. It observed at [56]–[57]:

The meaning of the formula "for the services of the Crown", as it occurred in s 46(1) of the Patents Act 1949 (UK), was considered in Pfizer Corporation v Ministry of Health. 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.

In any event, with an echo of s 51(xxxi) of the Constitution, the Spicer Committee made its recommendation for government use of copyright material in the following terms:

"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."

(citations omitted, emphasis in original)

94    The High Court considered (at [61]) that s 183(1) made no distinctions between government uses obliged by statute or government uses which may be “vital to the public interest” on the one hand (a course proposed in the Gregory Committee Report) and government uses which reflect considerations resembling commercial uses, on the other.

95    In ABC full court (Bowen CJ, Franki, Sheppard JJ), the question concerned a formulation by the Australasian Performing Right Association (APRA) of a licensing scheme granting a licence to the Australian Broadcasting Commission (ABC) to broadcast certain works owned and controlled by it. Pursuant to s 154(1) of the Copyright Act, APRA referred the scheme to the Copyright Tribunal, where the ABC objected to its jurisdiction on the ground that it was an agent or instrumentality of the Commonwealth and as such was afforded the benefit of s 183 of the Copyright Act. The Court found that the ABC did not fall within the section because it was neither the Commonwealth nor an agent or instrumentality of it (Bowen CJ, Franki J at 159; Sheppard J at 172). Bowen CJ and Franki J nonetheless went on to consider whether television broadcasts or sound broadcasts were acts done “for the services of the Commonwealth” within s 183(1) on the assumption that the ABC was such an agency. Their Honours said at 160:

If the Commission is the Crown, then it could be said its broadcasting was “for the services of the Crown” if the view of the majority…in Pfizer...be accepted for Australian conditions. This was that the phrase “for the services of the Crown” is not restricted to the traditional notion that it relates to services used by the Crown or its servants but in modern times extends also to services provided by the Crown or its servants to members of the public. In view of our conclusion that the Commission is not the Crown it is unnecessary to express a concluded view on this point.

(Emphasis added)

96    In further obiter dicta remarks, their Honours considered the contention put forward by the ABC, in the course of its argument, that each individual act of the ABC did not have to be examined under s 183 to determine whether a particular act, for example, the broadcasting of a sound recording, constituted an act done for the services of the Commonwealth. Although their Honours did not come to a conclusion on the question, their Honours expressed the view that in many instances, even in a very short period, a television or sound broadcast may involve many acts which, in the absence of some authorization, would infringe a great many copyrights. And that as a result, it seemed unlikely that Parliament intended to place such broad obligations on the Commonwealth.

97    In Stack v Brisbane City Council [1995] FCA 570; (1995) 59 FCR 71 (Cooper J), one issue was whether the respondent City Council could rely on s 163(1) of the Patents Act 1990 (Cth) (which was the corresponding provision to s 125 of the Patents Act 1952 (Cth)) in answer to a claim that it had infringed a patent for “water meter assemblies” by using certain water meters as part of the supply by it of reticulated water in its local authority area. Section 162 of the Patents Act 1990 (Cth) provided (similarly to s 132 of the Patents Act 1952 (Cth)) that a reference in the current Chapter to “a State includes a reference to an authority of a State”. After concluding that the respondent was an authority of a State for the purposes of s 163(1), Cooper J considered whether or not the exploitation of the invention claimed was “for the services of the State”. His Honour referred to each of General Steel, Pfizer and ABC Full Court and two older first instance decisions in the United Kingdom: Pyrene Co Ltd v Webb Lamp Co Ltd (1920) 37 RPC 57 and Aktiengesellschaft fur Autogene Aluminium Schweissung v London Aluminium Co Ltd (No 2) (1923) 40 RPC 107. He concluded (at 88) that in each of these older cases and also in General Steel there was the supply of an item by a contractor “for the direct use” of the authority or department concerned and in none was there a re-supply of the item to a third party in competition with the patentee. On that basis, he concluded that whether or not one adopted the majority or minority view expressed in Pfizer, the facts of each of the three cases fell within the ambit of that decision. It was therefore unnecessary for him to consider whether the majority view in Pfizer is the law in Australia. Turning to the facts of the case before him, his Honour concluded that as the water meters were supplied to the respondent City Council to be attached to its pipework to measure the quantity of water supplied by it to the landowners, the supply of the meters is not to the land owners but remains an asset of the respondent City Council. As such it was not only a direct use within all of the reasoning in Pfizer but also, conformably within the approach in General Steel, the use of the water meters was as an authority of the State for the services of the State. As his Honour held at 88:

Conformably with the approach taken by Barwick CJ in General Steel Industries the use of the water meters by the BCC as part of the supply by it of reticulated water in the Brisbane local authority area is the exploitation by the BCC as an authority of a State of the invention…for the services of it as such an authority. In consequence, s 163(1) of the Act operates to prevent the exploitation…constituting an infringement…

98    It may be seen that none of the cases surveyed above addresses the factual position in the present case, where the services rendered by the respondent are for the internal workings of the representative government clients. However, it is apparent from those few cases that address the construction of s 183(1) or similar language used in various Patents Acts, that the phrase “for the services” of the Commonwealth, State or Crown has been considered to have a broad and facilitative operation.

99    The majority in Pfizer considered (at 535, 543) the natural meaning of the phrase to be use by members of the public service in the course of their duties. Barwick CJ in General Steel, who did not refer to Pfizer, separately considered (at 133–134) that the language used reflected a Parliamentary intention to secure the “untrammelled” use of an invention by governments for the benefit of the services that they provide. The High Court in CAL v NSW added little on the point, but noted (at [57]), in apparent recognition of their relevance to the question of construction, the observations made by the Spicer Committee Report that the occasions on which the Crown may need to use copyright are “varied and many”. Nothing in ABC full court or Stack recommends a different approach.

100    Whilst some of the other examples referred to by the applicant – including Pocketful of Tunes and CAL v NSW – provided examples of a “direct connection” between the act comprised in the copyright and the services rendered to the citizenry, which is propounded by the applicant as the necessary test, not all did. For instance, re Application by Seven Dimensions Pty Ltd [1996] ACopyT 1; (1996) 35 IPR 1 (Sheppard P) involved the editing by the NSW Police Service of a training video (prepared by the applicant) which was then shown to its employees. However, in none of the examples was the Court obliged to consider the question of construction posed in this case and with that understanding in mind, those cases are not of particular assistance.

101    In my view, the text of s 183(1), the legislative context in which it appears, the apparent legislative policy that underpins it and the cases that consider the construction of the section indicate that an otherwise infringing act will be “for the services of the Commonwealth or State” where it is done for the benefit of the Commonwealth or State, whether or not there is a direct connection between the act and services provided to citizens.

102    Section 183(1) is an affirmative defence, and it will be for a respondent to a claim for infringement to satisfy the Court that the services are supplied for that purpose.

103    By the scheme of Part VII of the Copyright Act, the obligations to obtain proper authorisation and to report otherwise infringing acts and pay compensation for the use reflect the intention of Parliament to balance this broad intrusion into the rights of copyright owners with the protection of their commercial interests.

104    I now turn to consider this construction in the context of the facts of the case.

4.5    Application to the respondent’s media monitoring services

105    In the present case, the respondent supplies media monitoring services to the representative government clients. The picture that emerges from the evidence, I find, is 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. This need includes up-to-date and sometimes real-time information about events unfolding as well as daily “clippings” of news reports. As much emerges from the agreements and client briefs tendered and the evidence of Ms Rossi and Mr Duffy. The examples given by those witnesses demonstrate that in order for government entities to develop policy and respond to the needs of the pubic it is important to understand the public discourse on subjects relevant to their functions. The evidence satisfies me that media monitoring enables public servants to provide information and advice to their superiors and Ministers, to assist in the conduct of investigations - for instance to alert a department of potential regulatory breaches, and to inform them of the responses to departmental policies or proposed policies. It also enables them to be informed of community behaviour and of events falling within the remit of the department concerned. As Mr Duffy said, the provision of media monitoring services provided the basis for his understanding of complex public policy conversations, and the evolving positions of relevant stakeholders within and outside government, to enable him to communicate with Ministers regarding those conversations, formulate policy to address issues in the community, understand how policies are being received within the community and understand media sentiment to them. This evidence is supported by a review of the primary documents tendered by the respondent to which I have referred in Section 2.4 above and which, I accept, indicate the scope of areas of legitimate interest of the representative government clients and serves to emphasise the importance of those areas in the performance of their functions.

106    The range of such subjects of interest will be broad and will include media items where the particular entity is mentioned, key personnel (such as Ministers) are named, and topics that are or may be relevant to their activities are determined. Framing those areas of interest is in each case done iteratively by the employees of the representative government client in consultation with the respondent resulting in the selection of Boolean terms suitable for electronic searching. I infer that each search term represents a good faith attempt by those involved to capture (predict) words or phrases likely to identify media items that are relevant to the client in the performance of its duties.

107    Taking DSS as an example, the respondent’s services are supplied pursuant to the Head Agreement, the relevant schedule to which indicates that the services are to be provided to [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. This may be understood as supplying a broad description of the reason why the services have been requested. There can be no real dispute that such services are relevant to the conduct of DSS as a government department. When understood in the light of the unchallenged evidence of Mr Duffy and Ms Rossi, it may be concluded that such a department will monitor relevant media content for various purposes, including formulating policy, informing senior officers and Minister of matters, events and commentary relevant to the department, determining whether or not to take regulatory action and monitoring the effectiveness of communications with the public. In a modern democracy, public debate often takes place in the media. Officers of the DSS will be required to keep up to date with that debate in order to perform their functions. The media monitoring services supplied by the respondent, by capturing, classifying and presenting sorted and selected news content to the DSS assist its officers to understand that debate.

108    The respondent is authorised by the DSS to conduct its media monitoring activities in circumstances where, I accept, DSS would otherwise be obliged to undertake its own media monitoring. In lieu of that course, it instructs the respondent as to the scope of the media content that it wishes to survey and leaves it to the respondent to devise a means of doing so.

109    Turning more specifically to the respondent’s activities, it is not in dispute that they involve the copying of the applicant’s Sky News content. The process that the respondent chooses to use involves wholesale copying, storing and then indexing to make a subset of the copied work available. The system adopted by the respondent involves redundancy which includes the copying of the entire Sky News content (as described above), much of which is never supplied to the client. 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.

110    The applicant submits that some of the sample Sky News content copied by the respondent is self-evidently not relevant to the activities of a representative government client (despite being tagged to them), such that on no view could that particular item benefit from the protection of s 183(1). For example, sample 1 was tagged to the ACT as the relevant representative government client but concerns a review into the Australian Defence Force by a former Federal Minister for Defence. The applicant submits that it is incumbent upon the respondent to say how it could be that such an article could be relevant to the services of the ACT. However, as the respondent correctly submits, the fact that its media monitoring service may provide a news item that is not of interest to a client does not mean that the provision of the service is not for the benefit of the representative government client. It is the nature of media monitoring that some criteria must be employed to filter material that might be of interest from material that is unlikely to be of interest. Any filtering process will produce results of varying relevance. Each relevant act is nonetheless for the purpose of providing the service, and the service is for the benefit of the client.

111    I have, in section 4.3, rejected the applicant’s submission that s 183(1) requires in every case a granular examination of each otherwise infringing act in order to identify how it falls within the requirement that it has been done “for the services of the Commonwealth or State”. In the present case, I am satisfied on the basis of the evidence that:

(a)    the purpose of the media monitoring conducted by the respondent is for the benefit of each of the representative government clients in the performance of its functions;

(b)     the process by which instructions are supplied by each representative government client to the respondent ensures that the parameters of the media monitoring conducted by the respondent fall within that purpose; and

(c)    the otherwise infringing acts of the respondent (in capturing the Sky News content) done in accordance with the instructions, are acts undertaken by the respondent for the services of each representative government client.

112    Accordingly, the requirements of s 183(1) of the Copyright Act are met.

5.    DISPOSITION

113    For the reasons set out above the application must be dismissed.

114    The applicant must pay the respondent’s costs.

Associate:

Dated:    12 April 2024