The Charter isn’t just a piece of legislation. It’s also a literary work. At least, that’s the view of the crazy world of copyright law (and prerogative law), which also takes the view that all works – including legislation – made under the direction or control of the Crown is owned by the Crown. So, the Charter isn’t owned by George Williams or Andrew Gaze or the rest.
Anyone who wants to ‘copy’ the Charter needs permission from the relevant Crown, in this case Victoria. There is a statutory defence for the provision of single copies to a ‘person’ for a ‘particular purpose’, but only where any charge is limited to cost recovery. There are also traditional – albeit very murky – defences like fair dealing. It doesn’t matter that the Victorian government – and Austlii – give the thing away for free. If you want to do the same, you need a licence.
So, for someone like me, who is co-authoring a book on human rights that will be charged at more than a cost-recovery basis (although not much more), I knew I had to ask the Crown (or risk the book getting pulped.) In this case, I was told, there would be a fee, which depended on the amount of the legislation extracted, the number of copies of the book and the expected price. After I told them that I thought the book would quote the whole Charter – a rather short document – at one point or another and supplying the (commercially confidential) guesswork about sales, they came back to me with a quote. The cost would be $7,335. No, that’s not a typo.
On my calculations, that’s a charge of over $1 per word! So, for example, the cost of extracting the following rather pertinent provisions:
15 (2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria
18 (1) Every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs
38 (1) …it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
would cost $93!
The good news is that, after I politely queried the price and asked some pointed questions about the need for myself and my co-authors to save a small fortune by dropping various human rights from the book, I was quite apologetically told that the original quote was an error. The correct price is in the hundreds. (I was initially quoted as if the Charter was one of Victoria’s mammoth statutes, rather than one of its shortest.)
That saves me and my co-authors a world of trouble, but alas also means that I have less impetus to further pursue my feeling that such charges not only a nonsensical in terms of copyright law – since when has legislation been a money-making venture? should parliament start publishing more difficult-to-understand and dramatic legislation, just to reap the rewards of all the inevitable textbooks? will such a system inevitably disadvantage those who publish with small companies, compared to larger ones who can negotiate bulk deals? – but also human rights law. Is the Government Printer exercising her discretion to license copies of the Charter compatibly with the rights to freedom of expression and public life? What limits are there to the price she can set? Could she charge $7335 if she wanted to? Or more?
It’s worth noting that the General Assembly, when it passed the UN Declaration of Human Rights, added a call for “all Member countries to publicize the text of the Declaration” and “to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions”. The Charter is, of course, ultimately based on the Declaration. Maybe the UN should threaten to sue the Victorian Parliament for breach of copyright if it continues to flout its responsibilities to human rights.