Responding to a request for submissions to the Copyright Law Review Committee’s issues paper, Crown Copyright, the LIV stated there could, however, be scope for clarification of where Crown copyright exists.

Prepared in February this year, Crown Copyright asked whether copyright should subsist in government material, in whom it should be vested and under what circumstances.

Options for reform ranged from the abolition of statutory copyright and Crown prerogative (vesting copyright either privately or in the public domain), to its retention, with improved administration.

The Government could also adopt licensing practices or waive copyright in certain circumstances and types of material. However, the Government could also retain copyright but create a special exception to copyright infringement for government material.

The committee highlighted three key issues for members of the legal profession and other interested parties to consider. Firstly, whether the legislative scheme establishing government ownership of copyright was appropriate, and second, whether the government should own copyright in material produced by the executive, judicial and legislative arms of government. Lastly, it asked what options there were for reform, legislative or otherwise, and the costs and benefits of these.

In its submission, the LIV stated that it believed the law relating to government ownership of copyright material in Australia should not be changed in a “wholesale manner”.

It pointed out that the context in which Crown copyright operated was distinct from the operation of commercial copyright. It said the reason for the creation of copyright in a Crown context was to advance a public purpose, including education and information.

On the other hand, the LIV stated, the purpose of copyright in a commercial organisation was focused on sales and making profit.

Also, the LIV did not favour “an exhaustive legislative definition of the Crown, so as to preserve the existing jurisprudence surrounding this concept, and to maintain flexibility”.

The LIV did acknowledge, however, that there was scope for the legislation to “provide greater clarity on what constitutes an instrumentality of the Crown”.

Noting that the line between public and private sector organisations could sometimes be blurred, it argued that “greater guidance should be provided in the form of a list of factors to consider in determining whether a body constitutes an instrumentality of the Crown”.

“Such a list would assist practitioners in determining which side of the line the particular organisation that is being considered falls; that is, is the body an instrumentality of the Crown or not? Such a list should be flexible enough to deal with changes to economic and/or political circumstances,” the LIV said.