‘The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the Commonwealth or a State, or by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State.’

Where copying is carried out by IP Australia for the purposes of examining patent applications, the provisions of sec 183 of the Copyright Act must be complied with to rely on the Crown defence against copyright infringement. That is, copyright is not infringed by the Commonwealth in a literary work (e.g. examination reports) or a cinematograph film (e.g. YouTube videos), if copying is done for the service of the Commonwealth. This defence can therefore only be relied upon by examiners when making a copy of a work in the official course of their examination duties, for example, examining a particular patent application.

Should examiners make copies of any documents or videos from any social media website, to stay within the parameters of the Crown use defence, they must only download the document or video to COMPASS and not distribute further (except upon request by the applicant should the document or video have been taken offline at the time of the request).

Note: Where examiners have any doubts about breaching copyright or terms and conditions of a social media platform, they should contact the Office of Legal Counsel for assistance prior to storing copies of the material in COMPASS.

For further information on the use of COMPASS, see 4.4 COMPASS and Citation Storage.

For information on citing YouTube videos, see 1.1.12.5.4 Citation of URLs and 1.1.12.5.5 Citation Examples.

Notifying Copyright Holder

It is not necessary to notify the copyright holder. This is because IP Australia is a member of two statutory authorities:

The Copyright Agency Limited (CAL) is the declared collecting society (in accordance with a declaration under sec 153F of the Copyright Act) in relation to Government Copies of Works (excluding Works in sound recordings, cinematograph film and broadcasts) and manages the statutory licence for the Commonwealth’s use of hard copy material. CAL also conducts periodic surveys of government agencies to determine usage of copyright material.
Screenrights (Audio-Visual Copyright Society Limited) is the declared collecting society (in accordance with a declaration of the Copyright Tribunal under sec 153F of the Copyright Act) and manages the statutory license for the Commonwealth use of Sound Recordings, Cinematographic Films and television or sound broadcasts.

Information regarding the declaration from the Australian Copyright Council can be found at the following URL which expressly notes that YouTube videos may be downloaded based on the Crown use statutory provisions: https://www.copyright.org.au/ACC_Prod/ACC/News_items/2015/Screenrights_declared_for_government_use_of_audio-visual_content_from_the_internet.aspx

Under sec 183A(1) of the Copyright Act, the requirement to ‘inform the owner of the copyright’ under sec 183(4) of the Act does not apply where there is a statutory authorised collecting society, and the agreement between the agency and the collecting society is current at the time of copying.

The affected copyright holders are remunerated by way of compensation, and this is usually done by ‘sampling’. The library staff in IP Australia will complete any annual surveys required under the Copyright Act. The surveys are administered by the collecting society to make the relevant payments towards the copyright holders.

Proprietary Electronic Databases e.g. STN

Proprietary electronic databases (e.g. STN, IEEE and Derwent), electronic books and journals are covered by individual licence agreements, and the general copyright exceptions (as noted above) should not be relied upon. Under the terms of these licence agreements, examiners are able to save material obtained from electronic sources in COMPASS only (and not in PAMS), but must not supply such material to applicants or attorneys. Any requests for copies of material obtained from electronic sources must instead be referred to COG.

Chemical Abstracts (CAS) Registry Numbers

When an examination report cites a Chemical Abstracts (CAS) Registry Number, examiners are not precluded from including an associated chemical name and/or examiner-prepared chemical structure (e.g. using ChemDraw) in the report. However, copied images/snapshots of abstracts/structures/database entries from STN or CAS are not to be included.

For further information on citing CAS Registry Numbers, see 2.1.7.5 Non-Patent Literature.

Other Copyright Exceptions

Several other copyright exceptions exist, including:

copying undertaken by libraries pursuant to the library copying provisions of the Copyright Act; and
copying which is the subject of an express or implied licence, or which falls within one of the exceptions under the Copyright Act, including:
- Section 40: Research (the careful search or inquiry, endeavour to discover new or collate old facts by scientific study of a subject, course of critical investigation).
- Section 182A: State legislation or statutory instruments and judgements of state courts and tribunals.
- Section 200AB: Special cases not already covered by another specific exception.

Note:

Section 40, sec 43, and sec 182A restrict copying to one copy only.
Copyright in a literary work generally ceases 70 years after the death of the author.

Note: There are no copyright restrictions upon Australian provisional and complete specifications, and other prescribed documents, due to the waiver in sec 226 of the Patents Act where that document is open for public inspection. Prescribed documents include documents usually associated with the case file of a patent application, for example attorney correspondence. However, documents such as journal articles are excluded and the normal copyright restrictions apply.