Harman Patil (Editor)

Crown copyright

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Crown copyright is a form of copyright claim used by the governments of a number of Commonwealth realms. It provides special copyright rules for the Crown, i.e. government departments and (generally) state entities.

Contents

Australia

Under Part VII of the Copyright Act 1968, the Australian Government holds copyright in any work, film or sound recording made by or under the direction or control of the Government, and any work first published by or under the direction or control of the Government.

Section 182A of the Act provides that for certain "prescribed works", copyright is not infringed for making one copy of the whole or of a part of that work, as long as it is not sold for a rate that is above the actual costs of copying. Prescribed works generally include legislation and court judgments.

An extensive review was carried out in 2004 and the findings were published in 2005 in the Copyright Law Review Committee's report. The chief recommendation was to end the distinction between the Crown and other copyright holders. In particular, the Committee was "emphatic" that the Crown lose its unique position of gaining copyright over material whenever it is the first publisher of such material. For example, a previously unpublished short story, upon being published in a government work, would cease to belong to the author and would instead become Crown copyright, denying the author any future royalties or rights to it.

Crown copyright has been used to deny public access to data about the Black Saturday bushfires.

Canada

Normally, copyright in Canada "exists for the life of the author/creator, the remainder of the calendar year in which he is deceased, plus fifty years after the end of that calendar year". For Crown copyright however, there is a slight difference. Canadian Crown copyright is based on the concept of royal prerogative and "is not subject to the usual statutory copyright term". This prerogative is referenced at the outset of section 12 of the Copyright Act, which states that this section is made "Without prejudice to any rights or privileges of the Crown". Crown copyright covers all works that are “prepared or published by or under the direction or control of Her Majesty or any government department.” In this way, "work produced by government departments, whether published or unpublished, may be protected either permanently or at the whim of the Crown". Subsequently, Crown copyright can be, in certain cases, "said to be perpetual...and not to lapse through non-use or non-assertion", and that a "right to certain works by prerogative amounts to a perpetual term of copyright protection". One example is where the "Arms of Canada as designed in 1921 and revised in 1957...[and] as revised in 1994...are protected under the Trade-marks Act and the Copyright Act", maintaining Crown copyright long after the normal 50-year period. Crown copyright exists for a variety of reasons, such as to ensure accuracy and integrity, to control symbols used to identify the Crown and its agents, as well as to supervise and control the publication of government works as the public's trustee.

Specific terms and conditions are as follows:

New Zealand

Crown copyright in New Zealand is defined by Sections 2(1), 26 and 27 of the Copyright Act 1994. The Crown is the first owner of any copyright subsisting in any work created by a person who is employed or engaged by the Crown, under a contract of service, apprenticeship, or a contract for services. It covers works of the Queen in right of New Zealand, Ministers of the Crown, offices of Parliament and government departments. The term is 100 years.

Exceptions

For Crown entities and State-owned enterprises, regular copyright provisions apply instead of the 100-year term (i.e. 50 year-terms in many cases).

A term of 100 years also applies under Section 26(3)(b), with one exception, namely a 25-year term for typographical arrangements of published material. Such works produced before 1945, however, had only a term of 50 years, and so became public domain in 1995.

At common law, and under the Copyright Acts until recently, the Crown acquired title by a kind of prerogative copyright in certain books or publications such as acts of Parliament, proclamations, and orders-in-council. However, there has been a deliberate divestment by the Crown of its copyright in law – principally in consideration of the view that law should be freely available.

Section 27(1) defines a further exception to Crown copyright and copyright: bills, acts of parliament, regulations, bylaws, Hansard, tabled select committee reports, court judgments, tribunal judgments, royal commission reports, commission of inquiry reports, ministerial inquiry reports and statutory inquiry reports do not carry any copyright, regardless of age. Section 27(1) came into effect on 1 April 2001. There is, in New Zealand, under s. 27 of the Copyright Act, 1994, no copyright in regulations. Section 27(1) exceptions apply in the original work, and do not apply in terms of new typographical editions by others, nor in annotations made by organisations such as legal publishers.

United Kingdom

Crown copyright applies "[w]here a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties". The Crown can also have copyrights assigned to it. There is, in addition, a small class of materials where the Crown claims the right to control reproduction outside normal copyright law due to Letters Patent issued under the royal prerogative. This material includes the King James Bible and the Book of Common Prayer.

Prior to the 17th century, the executive – acting on behalf of the monarch under royal prerogative – controlled all printing and the granting of licences to printers. During the 17th century, the Crown lost most of its rights, except with regard to the King James Bible, the Book of Common Prayer, Acts of Parliament and similar. Until 1911, there was no special status for the Crown, excepting those texts.

The Copyright Act 1911 removed the concept of common law copyright protection from British law, and it also provided specific protection for government works for the first time. Crown copyright was extended to any work prepared or published by or under the direction or control of His Majesty or any Government department. The Copyright Act 1956 further extended Crown copyright protection to include every original literary, dramatic, musical or artistic work made by or under the direction or control of Her Majesty or a Government department; sound recordings or cinematograph films made by or under the direction or control of Her Majesty or a Government department and works first published in the UK, if first published by or under the direction or control of Her Majesty or a Government department.

When the Copyright, Designs and Patents Act 1988 (the 1988 Act) came into force, the scope of the definition of Crown copyright was considerably reduced. Crown copyright was defined as subsisting when a "work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties". Crown copyright was also defined as subsisting "in every Act of Parliament, Act of the Scottish Parliament, Act of the Northern Ireland Assembly or Measure of the General Synod of the Church of England". All existing works in Crown copyright were continued as such.

However, some documents have Crown copyright waived by the government, subject to certain conditions. This was introduced in a white paper in 2000 in order to improve access to government publications. This listed 10 classes of documents for which "formal and specific licensing will not be necessary".

  • Primary and secondary legislation
  • Explanatory Notes to legislation
  • Government press notices
  • Government forms
  • Government consultative documents
  • Government documents featured on official departmental Web sites
  • Headline statistics
  • Published papers of a scientific, technical or medical nature
  • Text of ministerial speeches and articles
  • Unpublished public records
  • The duration of Crown copyright varies depending whether material is published or unpublished. Unpublished material was originally subject to copyright protection in perpetuity. However, the 1988 Act removed this concept from British law. Transitional provisions that apply for 50 years after the entry into force of the 1988 Act provide that no unpublished material will lose its copyright protection until 1 January 2040. New Crown copyright material that is unpublished has copyright protection for 125 years from date of creation. Published Crown copyright material has protection for 50 years from date of publication. Those works protected under Letters Patent have perpetual control of reproduction claimed over them despite being published. Works where copyright is assigned to the Crown by an author are subject to the normal term of protection for that particular type of work, for example life of the author plus 70 years for a literary work.

    Crown copyright works still in copyright may be released under the Open Government Licence by the relevant rights owner or authorised information provider.

    The UK government has historically charged fees for access to some Crown copyright works in order to offset costs.

    Criticisms

    Crown copyright has historically been perceived as depriving taxpayers of access to the very works they fund, and as prioritising funded business interests over otherwise regular citizens who cannot afford to license the works. However, the UK Government has developed a trend of automatically licensing all works published on GOV.UK and The National Archives under The Open Government Licence.

    References

    Crown copyright Wikipedia


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