crown-use exemption trumps copyright infringement

In a significant intellectual-property dispute, Australian News Channel Pty Ltd (ANC), a subsidiary of News Corp Australia and operator of Sky News Australia, commenced proceedings in the Federal Court of Australia against media-monitoring service provider Isentia Pty Ltd.

Background

The case arose from the distribution, as alleged by ANC, of ANC’s broadcast and digital content to Commonwealth and State government clients.

In plain terms, ANC contended that Isentia collected and distributed Sky News content to government agencies for internal use, even though ANC relied on the existence of an exclusive licence arrangement with another monitoring provider. ANC argued that this conduct constituted copyright infringement, on the basis that Isentia was copying and transmitting content without commercial permission.

However, Isentia relied on written authorisation from the government clients and argued that its conduct fell within the Crown-use exemption under section 183(1) of the Copyright Act 1968 (Cth). The case therefore turned on whether this statutory defence applied to the activities undertaken.

Legal Considerations

The dispute focused on the construction of the Crown-use exemption, which provides that copyright is not infringed when the Commonwealth, a State, or a person authorised in writing by the Commonwealth or a State performs acts comprised in copyright for the services of the Commonwealth or State. Two central questions emerged:

• What constitutes “for the services of the Commonwealth or State”? Does it extend beyond public-facing services to internal, administrative, or preparatory functions?

• Whether Isentia’s copying and distribution of Sky News content to government agencies, undertaken pursuant to written authorisations, fell within the statutory exemption.

ANC argued for a narrow interpretation, contending the exemption should be confined to activities directly connected to identifiable public services. Isentia argued for a broader construction, submitting that acts authorised in writing and undertaken in support of government functions, even if internal or preparatory, fell within section 183(1).

Federal Court Judgment

In Australian News Channel Pty Ltd v Isentia Pty Ltd (2024) FCA 363, Justice Burley ruled in favour of Isentia. The Court held that the Crown-use exemption is not limited to public-facing services and that internal, administrative, and preparatory functions can fall within the exemption where the acts are undertaken under written government authorisation.

The Court found that Isentia’s copying and distribution of Sky News material to government clients was authorised in writing by the relevant government agencies and was undertaken for the services of the Commonwealth or States, and therefore did not constitute copyright infringement.

Appeal and Reinforcement

ANC appealed the decision. The Full Court of the Federal Court, in Australian News Channel Pty Ltd v Isentia Pty Ltd (2025) FCAFC (appeal citation), dismissed the appeal and upheld Justice Burley’s construction of section 183(1).

The Full Court confirmed that authorised government use of copyrighted material is not confined to outward-facing services and may extend to internal or preparatory activities undertaken in support of governmental functions.

Implications for Media Owners and Monitoring Providers

The ruling clarifies that the Crown-use exemption can apply to government-authorised copying and distribution of content, even where exclusive commercial licences exist. Media owners seeking to enforce exclusivity must account for the operation of statutory exemptions, which may override private licensing arrangements when government clients are involved.

Monitoring service providers should ensure that written authorisations are obtained and documented consistently with section 183(3) when servicing government clients. Operational protocols and contract structures should reflect the availability and limits of the Crown-use exemption to manage risk.

Government agencies, in turn, should maintain clear processes for issuing written authorisations and assessing any remuneration obligations under the Copyright Act, ensuring that authorised activities are properly documented and compliant with statutory requirements.

The decision does not extend to commercial or private clients outside the Crown-use framework, and ordinary copyright liability continues to apply in those contexts.

Professional Significance

Australian News Channel Pty Ltd v Isentia Pty Ltd establishes leading authority on the scope of the Crown-use exemption in Australian copyright law. The case demonstrates that authorised government use is not confined to public-facing service delivery, but can extend to internal and preparatory governmental functions.

The judgment confirms that statutory exemptions operate independently of commercial licensing arrangements and can have decisive practical and commercial consequences when government use is involved.