Federal Court Confirms the Limits of Governments’ Use of Copyright
By Georgia Renard | Associate
Did you know that under section 183 of the Copyright Act 1968 (Cth), Australian government entities can legally use copyrighted material if they pay the copyright holder reasonable compensation?
What Is the “Crown Use” Provision?
Section 183 of the Copyright Act 1968 (Cth) sets out a special exception – commonly known as the “Crown Use” provision – that allows Australian federal, state, and territory governments to use copyright material under specific conditions. [1]
This provision broadly gives the Crown a right to use copyright material in circumstances where it is used for official government purposes and where acceptable compensation has been given to the relevant copyright holders. The “Crown Use” provision aims to allow the Australian government to operate freely while still protecting the rights and interests of copyright owners and is broadly analogous to section 125 of the Patents Act 1952 (Cth).
The scope of this provision has previously been the subject of legal ambiguity. Questions around what qualifies as legitimate use of section 183 recently came before the Full Federal Court in Australian News Channel Pty Ltd v Isentia Pty Limited [2025] FCAFC 49, which has provided important clarity regarding the scope of the Crown Use provision. [2]
Full Federal Court in Australian News Channel Pty Ltd v Isentia Pty Limited [2025] FCAFC 49
Background of the Dispute
The dispute centred on the activities Isentia, a media monitoring company that was engaged by various Australian government agencies to monitor the broadcasts and online content of Sky News Australia, who in turn are owned by Australian News Channel Pty Ltd. In the process of its media monitoring, Isentia made extensive copies of Sky News broadcasts, online content, and other material of which Sky News was the copyright owner.
In its defence, Isentia relied on section 183 of the Act, being the “Crown Use” provision. It argued that it was authorised by government agencies to provide media monitoring services and that, under a broad interpretation of section 183, such use of copyright material was “for the services of the Commonwealth or State” in the sense that it benefited a government entity or agency. Therefore, according to Isentia, this use of Sky News broadcast material did not constitute copyright infringement.
Australian News Channel (ANC) in turn argued that Isentia’s distribution did not qualify as an act “for the services of the Commonwealth or a State.” It argued that the legislation should be given a narrow construction such that “for the services of the Commonwealth of State” should be interpreted as being, or being limited to, the provision of benefits to members of the public. That is, ANC contended that there must be a “granular” connection between the use of the material and a specific government service provided to the public for the use to fall under section 183.
The legal question at the heart of this dispute was the interpretation of “for the services of the Commonwealth or State” in section 183. Specifically, a question for the court to consider was whether section 183 requires a direct connection to a specific, public-facing government service – as put forward by ANC – or whether the use could be for the benefit of the internal workings of government agencies or services in a broader sense.
The Full Federal Court’s Decision
The Full Federal Court sided with Isentia, holding that providing media monitoring services to government clients does fall within the scope of section 183. The Court rejected the need for a narrowly defined connection between the use of the material and a specific public-facing government service that provides a benefit to the Australian citizenry.
This was due in part to the circumstances of the introduction of section 183 and the clear legislative intent that section 183 of the Copyright Act 1968 (Cth) should be analogous to section 125 of the Patents Act 1952 (Cth), which has been granted a broader interpretation in line with what Isentia was arguing in this case.
The decision clarifies that government agencies and authorised contractors (like Isentia) can use copyright material without infringing copyright when that use is for the benefit of Commonwealth and State government agencies. This includes uses for internal, back-office, and policy-making tasks as well as for public-facing purposes. However, government agencies are still required to provide proper remuneration to copyright owners when copyright material is used.
Implications for Copyright Owners
This decision will give government stakeholders greater certainty around their ability to use copyright material for a broad range of purposes and without the consent of copyright holders.
Right holders will also be interested in the affirmation of their right to compensation for use of copyright material, albeit that a broad interpretation of section 183 affords them less control over the use of their work.
This is the first time the Full Federal Court has provided comprehensive guidance on the construction and scope of the “Crown use” exemption in relation to copyright works, setting a clear precedent for future cases and ensuring a balance between efficient government operation and the rights of copyright holders.
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References:
[1] Australian Government. (2022). Copyright Act 1968 (Cth), s 183. Retrieved from https://www.legislation.gov.au/C1968A00063/2022-07-01/text/original
[2] Australian News Channel Pty Ltd v Isentia Pty Limited [2025] FCAFC 49. Retrieved from https://jade.io/article/1128617
Featured Image by Dominic Kurniawan Suryaputra on Unsplash
