A UK Councillor has recently come under fire for posting extracts of the Brighton & Hove City Council meetings on his personal website and on YouTube. In early 2009, a complaint was received by another Councillor, in relation to the conduct of Cllr Kitcat (yes, that’s his name), in posting 5 extracts from webcasts of Council meetings that took place between 2008 and 2009. These webcasts had originally been filmed by the Council and placed on the Council’s website, which was available to the public. The Standards Hearing Panel found that Cllr Kitcat breached the Members’ Code of Conduct by using Council resources for political purposes. The Panel ordered Cllr Kitcat to apologise to the affected Councillor and undergo remedial training or else face a 6 month suspension. Cllr Kitcat refused this order and is appealing the finding.
Interestingly, the Council did not bring an action for copyright infringement, instead only alleged breaches of the Code. We thought we would examine the major issues the Council would face in bringing this type of action in both the UK and Australia.
United Kingdom
Assuming that copyright subsists in the webcasts, the next step is to identify the owner of that copyright. The UK Copyright Act has provisions dealing with both Crown and Parliamentary Copyright. Parliamentary Copyright was introduced in 1988 and applies to works made by or under the control of the House of Commons or the House of Lords. It also extends to works made by or under the direction or control of a legislative body in the UK. It is unclear, based on this definition, whether Parliamentary Copyright would extend to works of local councils. However, even if it does not apply, the Brighton & Hove City Council would still be able to hold copyright in its own name.
Assuming ownership of copyright was uncontested and the Council was able to show that posting extracts online amounted to copyright infringement; Cllr Kitcat would be likely to raise the defence of fair dealing. This defence applies to uses such as reporting of current events, non-commercial research and criticism or review. Depending upon the nature of the clips and context in which they were presented, it is possible that Cllr Kitcat would be able to rely upon the “news reporting” or “criticism or review” defences to meet an allegation of copyright infringement. The applicability of these defences is, however, by no means certain and would clearly be dependent on any actual or perceived use of the clips.
Australia
By comparison, the Australian Copyright Act does not recognise Parliamentary Copyright; although it does recognise Crown Copyright. This applies to works made by or under the control of the Commonwealth or a State. It is unlikely that works created by the local council would be considered works created by the Commonwealth or a State for the purpose of this definition. We are not aware of any cases directly on point, but some cases have arisen where it has been necessary to determine whether a council body is considered “the Crown”. In many of these cases the courts found that local councils or municipalities were not considered “the Crown”. However, as above, a local council would still be able to hold copyright in its own name. Australia also has a fair dealing defence for acts such as research, reporting news, review or criticism and parody or satire. The same observations above in relation to the applicability of these defences also apply in Australia.
We will be sure to keep you updated on the outcome of Cllr Kitcat’s appeal.
