“I Am Australian”: Seeking compensation for Crown use of copyright

Known and loved by generations of Australians and often described as our unofficial national anthem, the iconic song I Am Australian now finds itself in the midst of a legal dispute in the Copyright Tribunal of Australia between one of its co-authors, Bruce Woodley of The Seekers, and the Commonwealth government.

The musical score was originally written by Woodley, and the lyrics co-written with his contemporary Dobe Newton of The Bushwackers, in 1987.  It has since enjoyed numerous moments in the spotlight, having been used by entities as diverse as Telstra and the Salvation Army.  It has also been covered by a number of celebrities, including Jessica Mauboy and Justice Crew, and was most recently performed by Katie Noonan at the MH17 memorial.  It even has its own Wikipedia page, and has clocked up 1,228,658 views on YouTube to date.

The song was included in a Department of Immigration and Citizenship video produced by the government in 2008 and given to local councils for use in naturalisation ceremonies.  It was subsequently distributed to around 565 councils throughout Australia until November 2012 without Woodley’s knowledge or permission.  Woodley (and the company which he co-owns, Pocketful of Tunes Pty Ltd) have now complained to the Department, seeking appropriate remuneration in respect of the government’s use of the song.

It appears uncontroversial that Woodley was the original owner of copyright subsisting in the score and a co-owner (with his co-author, Newton) of copyright in the lyrics, being musical and literary works respectively under the Copyright Act 1968 (Cth).  It appears that certain rights have since been assigned to a company of which Woodley is a co-owner, Pocketful of Tunes Pty Ltd, which is also a party to the current dispute.

An owner of copyright has the exclusive right to reproduce, publish, perform, communicate or adapt a work, or authorise another person to do so (under sections 13 and 31 of the Copyright Act).  However, the copyright in a literary or musical work is not infringed by the Commonwealth or a State (or a person authorised by the Commonwealth or a State) if the acts are done “in the services of the Commonwealth or the State” (section 183 of the Copyright Act).  This is commonly referred to as the “government use statutory licence”. The right of the Crown to use copyright works in this way has been said to derive from its position as head of a self governing territorial unit.

So what are acts done “in the services of the Commonwealth or the State”?  Unfortunately, there is no clear guidance on this question.  However, it is likely that the use must relate to a service provided by a federal or state government department.  In the past, the provision has been used for a diverse range of government purposes, from authorising the state to make copies of registered survey plans (in Copyright Agency Ltd v New South Wales (2008) 233 CLR 279) to allowing delivery by the Commonwealth to the United States Navy of plans for a Collins class submarine propeller for the purpose of modification (in Kockums AB v Commonwealth [2001] FCA 398).

Despite the broad reach of the provision there are some statutory “controls” around its use to ensure that copyright owners are adequately protected and compensated. For instance:

  • the copyright owner must be given notice that the act has been done (unless it would be contrary to the public interest to do so) (section 183(3)), and
  • if the government body and the copyright owner cannot agree on the terms on which the work may be used, including any remuneration to be paid to the copyright owner, the Copyright Tribunal has jurisdiction to resolve this issue (section 183(4)). When determining the amount of compensation the copyright owner is to be paid, the Copyright Tribunal generally refers to the market rate for the use of the particular material.

So what does this all mean for Bruce Woodley and I Am Australian? The issue came before the Copyright Tribunal in July and was heard by Justice Bennett, the President of the Tribunal, who will give a decision on appropriate terms and compensation. This decision will likely take into account factors such as the extent to which the song has already been used by the Department, the types of use to which it will be put in future and the appropriate licensing fee for a piece of music of such reputation and popularity.

Stay tuned!