Crown Copyright: guidelines for administration V.2.0
Fundamentals of copyright
Copyright is the exclusive right to reproduce and publish a protected work.
Copyright law is governed by Commonwealth legislation, the Copyright Act 1968 ("the Act") and protects a broad range of material resulting from intellectual activity in the areas of art, literature, science and industry.
Ownership of these rights gives the owner the ability to protect those rights and the opportunity of commercial exploitation.
First copyright in publicity and information work that is originated outside of government would usually be owned by the originator or her/his employer. The fact that a department may have commissioned and paid for the work to be produced does not automatically give the department any rights of ownership in the material.
Consequently, any reproduction of the material by a department would require the consent of the originator. Departments that commission material should therefore consider seeking a formal assignment of copyright in favour of the Crown.
There are several reasons for this. It gives the department freedom to allow other contractors to use the material without paying fees to the original designer or writer. It also gives the department the power to prevent misuse of the material by the contractor or third parties.
In most cases the department will wish to waive copyright on the material and allow the public free use of it – but it cannot do this unless it owns the copyright. On rarer occasions, when commercial exploitation of the material is possible, it allows the department to benefit, rather than the contractor.
Examples of protected materials include:
- literary works such as books, articles, computer programs, compilations and all other forms of writing
- artistic works such as paintings, photographs, maps, drawings
- films including documentaries, TV programs, video-tapes
- sound recordings including compact discs, tapes, DVDs, CD-ROMs
- broadcasts on radio and television.
Copyright will subsist in an original work which possesses some minimal degree of creativity. An infringement of copyright will occur where a person does any act included in the copyright owner’s exclusive rights without permission.
For most literary, dramatic and artistic works, copyright lasts for the life of the ‘author’ plus 50 years. For most works produced by government, copyright lasts for 50 years from the end of the year of first publication or year of making.
Copyright protection is automatic and free. Material is protected from the time it is first created.
Management of copyright
The management of Crown copyright is the responsibility of the particular agency that possesses the copyright material. This responsibility is, however, to be carried out under the direction of the Administrator of Crown Copyright within the Department of Justice.
All agencies should educate their staff and make them aware of the types of materials in which Crown copyright may subsist, and the procedures to identify and protect those materials.
Agencies may manage intellectual property by licensing the property to a third party (with or without a fee) or selling the ownership of the property to a third party.
It is recommended that a database be established and maintained by agencies to register all licences, sales and agreements with third parties and all other dealings with copyright material.
When a request to reproduce Crown material has been granted, appropriate conditions should be imposed on the user.
All copyright queries should be referred to the Administrator of Crown Copyright at the Department of Justice.
Management of State Government computer program copyright
Computer programs are protected under the Act as literary works.
The Act also protects electronic databases as literary works, as the definition of 'literary work' includes a compilation expressed in words, figures or symbols. However for a database to be given protection, it must meet the appropriate level of originality.
Agencies wishing to market their databases should clarify their position in relation to copyright, particularly where the data has been derived from multiple sources (i.e. government and non-government).
Licensing of computer program copyright through a legally enforceable agreement is the best way for an agency to protect and exploit copyright ownership.
Revenue generation issues
Agencies should consider the broad social and economic goals of the Tasmanian Government in deciding whether to commercialise intellectual property. There may be situations in which it could be argued that the public interest may override any benefit of commercial exploitation.
Where it is viable to exploit intellectual property, as a minimum, agencies should aim for cost recovery. A formal business planning process reflecting market, cost and revenue related aspects should be used by agencies contemplating developing intellectual property, which may involve significant expenditure.
Appropriate advice may be sought from the expertise available in other agencies such as the Department of Economic Development, the Department of Treasury and Finance, and Crown Law.
When an agency releases intellectual property to non-Tasmanian Government agencies, it is essential that a legally enforceable agreement be entered into.
A memorandum of understanding will be sufficient when dealings are between Tasmanian Government agencies (provided they are not separate legal entities).