Opinion Number. 761

Subject

COPYRIGHT REPRODUCTION OF MAP OF AUSTRALIA WITHOUT NOTIFICATION OF RESERVATION OF CROWN COPYRIGHT: PRACTICE IN REGARD TO NOTIFYING CROWN COPYRIGHT: EFFECT OF OMITTING SUCH NOTIFICATION

Key Legislation

COPYRIGHT ACT 1912, s. 26: COPYRIGHT ACT 1911 (IMP.), ss. 1(2), 2, 18

Date
Client
The Secretary, Department of Home and Territories:

The Acting Secretary, Department of Home and Territories, has forwarded the following minute asking for advice:

The map of Australia which is covered by a Crown copyright has been reproduced on a smaller scale, and published in the Commonwealth Year Book. The notice of such copyright has been omitted.

I shall be glad to be informed whether such omission will in any way prejudice the Crown rights, and also whether it may be considered advisable to take any action to safeguard the interests of the Commonwealth.

By section 1 (2) of the Imperial Copyright Act 1911 which is adopted in the Commonwealth by the Copyright Act 1912, it is provided, inter alia, that copyright means the sole right to reproduce the work or any substantial part thereof in any material form whatsoever. By section 2 of the same Act copyright in a work is deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copyright.

Section 18 provides that:

Without prejudice to any rights or privileges of the Crown, where any work has, whether before or after the commencement of this Act, been prepared or published by or under the direction or control of His Majesty or any Government department, the copyright in the work shall, subject to any agreement with the author, belong to His Majesty, and in such case shall continue for a period of fifty years from the date of the first publication of the work.

The existence of copyright is in no way dependent on registration, although registration confers certain rights which cannot be availed of except by registered owners (see section 26 of the Commonwealth Copyright Act 1912). Nor is it dependent, in the case of the Crown, on the notification that Crown copyright in any particular publication is reserved.

Seeing, however, that many documents in which the Crown has copyright are reproduced without the consent of the Crown, there has grown up a practice of indicating the fact of the reservation of the Crown copyright upon any document in which the Crown desires to reserve its copyright. The omission of this intimation in any specific case does not, however, affect the right of the Crown to copyright in the publication in question, though it may perhaps affect the measure of damages which might be imposed in any proceedings for infringement.

The best course to take in the present case appears to be to notify through the public press that the Crown copyright in the map of Australia is reserved.

[Vol. 15, p. 35]

  1. This Opinion is unsigned in the Opinion Book, but it is attributed to Mr. Garran.