What is Crown copyright?

In general, copyright is governed by the Copyright Act 1968 (Cth) (the Act), which is administered by the Commonwealth Government of Australia. Part VII of the Act deals with Crown copyright. Division 1 provides that the State is owner of the copyright in an original artistic work made by or under the direction or control of the State. In addition, the Act makes it clear that no prerogative right or privilege of the Crown is affected by the legislation.

Crown copyright subsists for 70 years after the date when the work is first published, or if the work is unpublished so long as the work remains unpublished.

Where copyright is vested in the State, an exclusive right is devolved to reproduce the work in a material form and to publish the work. Copyright may be infringed by a person who, not being the State, and without the permission of the State, uses copyright material. However, the Act stipulates that copyright is personal property, and can be assigned, devolved by operation of law and licensed (Part X).

The Act contains various statutory defences such as fair dealing, which set out circumstances in which reproduction of copyright material does not constitute an infringement of copyright. These defences are also available in relation to Crown copyright material.

In addition, section 182A provides that in the case of certain prescribed works, such as an Act or judgment (defined in s182A(3)), copyright is not infringed by the making of one copy of the whole or of a part of that work for a particular purpose, provided that any charge made for making or supplying the copy does not exceed the cost of making and supplying the copy.

What is the role of the Attorney General?

It is not the role of the Attorney General or officers of the NSW Attorney General's Department to provide legal advice to private individuals. Persons who are concerned that the reproduction of Crown copyright material may constitute a breach of copyright should seek independent legal advice.

Since Crown copyright relates to a legal right vested in the Crown, it has been traditional that the Attorney General be the principal agent of the Crown in respect to the assignment or licensing of Crown copyright as provided for in Part X of the Act. That is, the Attorney General must approve the assignment or licence of Crown copyright material.

The Attorney General also has responsibilities under Part VII, Division 2 of the Act in relation to an agreement or licence made in relation to acts comprised in a copyright that are done for the services of the Crown.

Notices of non -enforcement of Crown copyright

The Attorney General, by notice published in the Government Gazette No 23 of 1995, authorised publishers, subject to stipulated conditions, to reproduce 'judicial decisions' without infringing the State's copyright in that material.

It should be noted that this does not allow the reproduction of any headnote or summary, footnotes, comments, case lists, cross-references or other editorial material prepared by or for the Council of Law Reporting or other law report agency without the further authority of the Council or agency.

The Attorney General has also by notice published in the Government Gazette No 110 of 27 September 1996, authorised publishers, subject to stipulated conditions, to reproduce 'legislative material' without infringing the State's copyright in that material.

This Notice was varied by way of a notice published in the Government Gazette No 20 of 2001 expanding the definition of legislative material to include Bills introduced into the Parliament of New South Wales.

How do I apply for an assignment or licence of Crown copyright?

Precise details of the material which is to be used must be provided. If possible, information should be provided as to which Government agency is (or was) responsible for the creation of the material, or which has control of the material. Submissions as to when or if the material has been published should also be provided.

Further, information concerning the nature of the publication in which the material is intended to be used, including a detailed description of the purpose of the publication and advice as to whether it is a for profit enterprise, must be provided. Applicants should also indicate whether it is planned to paraphrase or directly quote from the original text.

When an application for assignment or licence of Crown copyright material is received, the views of the Government agency responsible for the creation of the material will be sought. The terms of any licence or agreement will need to be settled between the applicant and the Government agency which created and controls the material sought to be reproduced.

It should be noted that there is no requirement for an assignment or licence to be obtained from the Attorney General when one agent of the Crown wishes to reproduce material the subject of Crown copyright which has been produced by another agent of the Crown.

Applications should be made to the Community Relations Unit:

The Director General
Attorney General’s Department of NSW
Locked Bag 5111
Parramatta NSW 2124