The case is the first in Australian history to consider the scope of section 183(1) of the Copyright Act in its application to the government and was led by Clayton Utz, which acted for Isentia.

In Australia, Commonwealth, state and territory governments have a “defence to copyright infringement”, whereby they use copyright-protected material “for the services of the Commonwealth or state”.

In 2021, ANC sought to prevent Isentia from providing Sky News content to government agencies, after giving an exclusive licence to a different media monitoring organisation – meaning that from September 2021, that media monitoring organisation was the only one able to provide customers with full content from Sky News Australia.

Relying on section 183(1) of the Copyright Act, which allows the use of copyright material for the services of the Crown, Isentia continued to provide Sky News content to its government clients that had provided an authorisation under that provision.

Following this, ANC commenced the Federal Court proceedings, asserting that the acts of Isentia undertaken in providing media monitoring services to the government were not acts “for the services of the Commonwealth or a state” within the meaning of that provision. The Federal Court dismissed the application by ANC, finding in favour of Isentia.

The Honourable Justice Stephen Burley agreed with Isentia that an “otherwise infringing act” falls under the broad scope of section 183(1) of the Copyright Act when done for the benefit of the Commonwealth – even if to only assist a government agency indirectly or in preparatory ways.

"[T]he language of ‘acts done for the services of the Commonwealth or state’ provides no intrinsic connotation limiting the type of acts to those done for the outward facing or end-use services provided by the Commonwealth or state. An otherwise infringing act is done for the services of the Commonwealth or state when the object or purpose of the act is to benefit the government entity by assisting its employees or officers in the performance of their functions,” Burley J said.

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“The language of the section does not support the notion that there must be a ‘direct’ connection between the act comprised in the copyright and the provision of a governmental service to citizens. Acts done that assist a government department to perform its proper functions will be no less for the services of the government because they have an indirect, back office or preparatory role.”

Partner Tim Webb led the Clayton Utz team, with key support from senior associates Joel Parsons and Francesca Teng, and lawyer Carla Rank.

“Media monitoring activities are within the scope of section 183(1), as it is important to the performance of the functions of government to keep abreast of what is reported in the media. This need includes up-to-date and sometimes real-time information about events unfolding as well as daily ‘clippings’ of news reports,” the team said.

“While section 183(1) is a defence to copyright infringement, there is still an obligation to pay the copyright owner for the usage. The provision thus entitles the use copyright material, subject to payment of compensation, without the need to seek permission to use the material in advance of that use.”

Webb added that the use of copyright content can assist the government in a variety of ways.

“We’re very pleased with the outcome of this case,” he said.

“It upholds Isentia’s longstanding view that the government has the right to access and use copyright material, including media content, as it assists the government to perform its proper functions.”