Federal Court of Australia considers whether media monitoring services provided to government clients are “for the services of the Commonwealth or State”

6 May 2024

The Federal Court of Australia (Burley J) has considered whether media monitoring services provided to government clients are “for the services of the Commonwealth or State” and within the protection afforded by s 183(1) of the Copyright Act 1968 (Cth) and thus not an infringement of copyright.

The question arose in relation to a dispute between Australian News Channel Pty Ltd (the applicant) and Isentia Pty Limited (the respondent) in circumstances where the respondent provides media monitoring services including in relation to content delivered by Sky News Australia. Media monitoring broadly involves searching for and extracting news and other media items of interest to clients. The process involves the wholesale copying of published articles and broadcast content.

The issue in Australian News Channel Pty Ltd v Isentia Pty Limited [2024] FCA 363 was whether, in supplying media monitoring services to various government entities, acts done by the respondent 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 the proceedings, there was no dispute between the parties that the applicant is the owner of the copyright in the works identified for the purpose of the test case, 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.

Justice Burley rejected the narrow construction of s 183(1) of the Copyright Act advanced by the applicant and instead found that the provision – which is an “affirmative defence” to a claim for infringement (at [102]) – has a “broad and facilitative” effect (at [70] and [109]). In preferring the respondent’s construction, Burley J had regard to the text, the legislative context and the apparent legislative policy, all of which were held to “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” (at [101]).

Justice Burley further found that obligations including to obtain proper authorisation from government, to report to government and to pay compensation for use “reflect the intention of Parliament to balance this broad intrusion into the rights of copyright owners with the protection of their commercial interests” (at [103]).

The proceedings were dismissed.

Cameron Moore SC and Danielle Forrester appeared for the respondent, Isentia Pty Limited, on instructions from Clayton Utz.

Link to judgement