Why is the TGA alleging copyright infringement against Craig Kelly's text messages?

By Nick Li
Intellectual Property Patents & Trade Marks Telecommunications

An unconventional response to unsolicited texts 3 min read

The Therapeutic Goods Administration stepped in to stop Craig Kelly and the United Australia Party's unsolicited text messages spreading COVID vaccine misinformation, but why did it resort to alleging copyright infringement?

Key takeaways

  • Copyright subsists in original literary works – including content such as that which appears on the Therapeutic Goods Administration's (TGA) website and the Database for Adverse Event Notifications (DAEN).
  • The reproduction of selected extracts from the DAEN on a website controlled by the United Australia Party (UAP) without the consent of the Federal Government as copyright owner, is likely to amount to copyright infringement.
  • Copyright similarly subsists in the product information for medicines. However, the reproduction and adaptation of such material is exempt from copyright infringement where it supports the safe and effective use of the medicines.

Copyright to the rescue?

In September, the Australian therapeutic goods regulator – the TGA, sent Craig Kelly of the UAP a cease and desist letter demanding he cease distributing incomplete extracts from the DAEN.

The TGA's action was taken in response to text messages sent en masse by Craig Kelly which read 'Australian Government’s COVID-19 Vaccines Adverse Events Report. click link Authorised by Craig Kelly.'

The link took users to a website controlled by the UAP, but which displayed the TGA's logo and contained selective extracts from the DAEN to support what the TGA alleged was misinformation about the rate of adverse events linked to COVID vaccinations.

What is the DAEN?

The DAEN is maintained by the TGA, and records adverse events reported by consumers, healthcare professionals and sponsors of therapeutic goods. Importantly, the DAEN records do not provide any information about the seriousness of the adverse events, nor whether the event was caused by the medicine.

The Government asserts ownership of copyright in the content TGA's website, including the DAEN – as per the copyright notice on its website (Copyright | Therapeutic Goods Administration (TGA)).

Why did the Government have to resort to alleging copyright infringement?

The unsolicited messages sent by Craig Kelly have been widely regarded as spreading misinformation about COVID vaccinations — yet the Government had limited options to stop the conduct.

The prohibitions on sending unsolicited messages under the Spam Act 2003 (Cth) apply only to commercial messages. They do not restrict the implied freedom of political communication under the Australian Constitution. As Craig Kelly is a current member of Parliament, the prohibitions did not apply to the messages in question.

The messages were also beyond the scope of the Australian Consumer Law – the prohibitions on false or misleading conduct in section 18 and misrepresentations in section 29 only apply to conduct which occurs 'in trade or commerce'.

The TGA has broad powers to enforce against misleading or false advertising relating to therapeutic goods. However, in this case, the relevant messages could not be construed as 'advertising' under the Therapeutic Goods Act 1989 (Cth).

The use of the TGA and government logos on the UAP-controlled website might amount to a misrepresentation in relation a federal body, which is a criminal offence under the Criminal Code. News reports indicate the Government may have also been considering this option.

Copyright in the DAEN content

The DAEN would be considered a literary work under the Copyright Act 1968 (Cth), provided it is sufficiently original. The DAEN is not protected under Australian law by reason of it being a database per se – as database rights are not recognised at Australian law. However, copyright can nevertheless subsist in content available on a database, provided it is sufficiently original.

The Government, as the copyright owner, would therefore have exclusive rights to the use, reproduction and transmission of DAEN extracts. As per the copyright notice on the TGA's website, commercial use or distribution of the materials – such as being included in Craig Kelly's unsolicited texts — is beyond the Government's [user] licence, and so requires its prior consent.

What about product information?

Copyright also subsists in the product information for medicines. The Copyright Act exempts certain conduct, including adaptation and reproduction of approved product information, from copyright infringement where it supports the safe and effective use of the relevant medicine. This suggests the UAP won't be able to avoid copyright infringement by pivoting from misrepresenting DAEN extracts to misrepresenting product information extracts.