COPYRIGHT TRIBUNAL OF AUSTRALIA
Reference by Australian Spatial Copyright Collections Ltd [2004] ACopyT 1
COPYRIGHT – copying by governments – collecting societies – whether applicant should be declared under s 153F of Copyright Act 1968 (Cth) (‘the Act’) as collecting society in respect of copying of surveyors’ plans by governments – respondent, Copyright Agency Ltd, already so declared in respect of copying of works by governments – test of whether one body should partially supplant another as declared collecting society – whether application was in respect of a ‘specified class of government copies’ – meaning of ‘specified class of government copies’ in ss 153F(1) and 182C of the Act – discretionary considerations.
Copyright Act 1968 (Cth) ss 153F, 153J, 182C, 183, 183A
Audio-Visual Copyright Society Ltd v Australian Record Industry Association Ltd (2000) 47 IPR 40 discussed
Audio-Visual Copyright Society Ltd v Australian Record Industry Association Ltd (2000) 103 FCR 507 discussed
REFERENCE BY AUSTRALIAN SPATIAL COPYRIGHT
COLLECTIONS LIMITED
CT 1 of 2003
LINDGREN P
5 MAY 2004
SYDNEY
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IN THE COPYRIGHT TRIBUNAL OF AUSTRALIA |
CT 1 OF 2003 |
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REFERENCE BY: |
AUSTRALIAN SPATIAL COPYRIGHT COLLECTIONS LIMITED
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RESPONDENT: |
COPYRIGHT AGENCY LIMITED
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LINDGREN P |
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DATE OF ORDER: |
5 MAY 2004 |
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WHERE MADE: |
SYDNEY |
THE TRIBUNAL ORDERS THAT:
1. The application be rejected.
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IN THE COPYRIGHT TRIBUNAL OF AUSTRALIA |
CT 1 OF 2003 |
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REFERENCE BY: |
AUSTRALIAN SPATIAL COPYRIGHT COLLECTIONS LIMITED
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RESPONDENT: |
COPYRIGHT AGENCY LIMITED
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TRIBUNAL: |
LINDGREN P |
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DATE: |
5 MAY 2004 |
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PLACE: |
SYDNEY |
REASONS FOR DECISION
INTRODUCTION
1 Australian Spatial Copyright Collections Limited (‘ASCCL’) applies under s 153F of the Copyright Act 1968 (Cth) (‘the Act’) for a declaration that it be a collecting society for the purposes of Div 2 of Part VII of the Act. Division 2 of Part VII is headed ‘Use of copyright material for the Crown’. The Division is sometimes described as being concerned with ‘government copying’.
2 ASCCL’s further amended application, filed with leave on 17 February 2004 after the conclusion of evidence and in the course of submissions, was for a declaration that it be a collecting society for the purposes mentioned, in relation to:
‘Government copies of the works described in the schedule to [the] application other than works described in the schedule that are included in a:
(a) sound recording, cinematographic film or a television or sound broadcast; and
(b) book, magazine, journal, and newspaper.’
The schedule referred to was as follows:
‘SCHEDULE
Survey plans (whether registered or unregistered), design plans, as-constructed plans, digital cadastral data bases, identification plans, plans lodged in relation to mining tenures, permanent mark sketch plans, topographic plans, hydrographic plans, aerial photos and their derivatives, survey reports and field notes and other supporting documentation, level books, and electronic data recorder information:
(a) that are reduced into writing or into any other material form including, whether visible or not, any form of storage from which such copyright material or a substantial part of such copyright material can be reproduced; and
(b) in which copyright subsists under the Act.’
I use the expression ‘the scheduled works’ to refer to the works in respect of the government copies of which ASCCL applies to be the declared collecting society. It must not be forgotten, however, that the scheduled works do not include works that are included in the things referred to in pars (a) and (b) in the body of ASCCL’s further amended application.
3 Pursuant to s 153F(2) of the Act, the Tribunal made Copyright Agency Limited (‘CAL’) a party to the application. It did so because CAL was already a declared collecting society for the purposes of Div 2 of Pt VII of the Act. On 18 December 1998 the Tribunal had declared CAL to be:
‘the collecting society for the purposes of Division 2 of Part VII of [the] Act in relation to Government copies of works and published editions of works, other than works that are included in a sound recording, cinematographic film or a television or sound broadcast.’
4 Accordingly, CAL is the declared collecting society in respect of government copies of works, including the scheduled works. In short, ASCCL submits that CAL has not been adequately advancing the copyright based interests of surveyors, and that ASCCL is more willing and able than CAL to do so.
LEGISLATION
5 Within Div 2 of Pt VII, ‘government’ means ‘the Commonwealth or a State’; ‘collecting society’ means ‘a company in respect of which a declaration is in force under s 153F’, and ‘government copy’ means ‘a reproduction in a material form of copyright material made under subsection 183(1)’: s 182B(1) of the Act. By s 182B(1) ‘copyright material’ is defined to mean:
‘(a) a work; or
(b) a published edition of a work; or
(c) a sound recording; or
(d) a cinematograph film; or
(e) a television or sound broadcast; or
(f) a work that is included in a sound recording, a cinematograph film or a television or sound broadcast.’
6 Subsections 183(1), (4) and (5) are as follows:
‘(1) 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.
…
…
(4) Where an act comprised in a copyright has been done under subsection (1), the Commonwealth or State shall, as soon as possible, unless it appears to the Commonwealth or State that it would be contrary to the public interest to do so, inform the owner of the copyright, as prescribed, of the doing of the act and shall furnish him or her with such information as to the doing of the act as he or she from time to time reasonably requires.
(5) Where an act comprised in a copyright has been done under subsection (1), the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the Commonwealth or the State and the owner of the copyright or, in default of agreement, as are fixed by the Copyright Tribunal.’
7 Non-infringement provisions such as that in 183(1) are sometimes called ‘statutory licences’. Subsections (4) and (5) are provisions of a kind apt to give rise to practical difficulties for both government and copyright owner. Accordingly, the Act was amended in 1998 by the insertion of, inter alia, s 183A, by the Copyright Amendment Act (No 1) 1998 (No 104, 1998). That section commenced on 30 July 1998.
8 Subsections 183A(1)–(5) provide as follows:
‘(1) Subsections 183(4) and (5) do not apply in relation to a government copy (whenever it was made) if a company is the relevant collecting society for the purposes of this Division in relation to the copy and the company has not ceased operating as that collecting society.
(2) If subsection 183(5) does not apply to government copies made in a particular period for the services of a government, the government must pay the relevant collecting society in relation to those copies (other than excluded copies) equitable remuneration worked out for that period using a method:
(a) agreed on by the collecting society and the government; or
(b) if there is no agreement—determined by the Tribunal under section 153K.
(3) The method of working out equitable remuneration payable to a collecting society in respect of government copies (other than excluded copies) for a period must:
(a) take into account the estimated number of those copies made for the services of the government during the period, being copies in relation to which the society is the relevant collecting society; and
(b) specify the sampling system to be used for estimating the number of copies for the purposes of paragraph (a).
(4) The method of working out the equitable remuneration payable may provide for different treatment of different kinds or classes of government copies.
(5) Subsections (3) and (4) apply whether the method is agreed on by the collecting society and the government or is determined by the Tribunal.’
9 Section 182C provides as follows:
‘A company is the relevant collecting society in relation to a government copy if there is in force, under Division 3 of Part VI, a declaration of the company as the collecting society for the purposes of this Division in relation to:
(a) all government copies; or
(b) a class of government copies that includes the first-mentioned government copy.’ (my emphasis)
10 Prior to (and since) the introduction of s 183A, it was (and has been) possible for an organisation, either as the authorised agent of copyright owners or as the assignee of copyright, to deal with governments. But this leaves at large those copyright owners who neither authorise the organisation to act as their agent, nor assign their copyright to it. Section 183A assists governments, first, by shifting the problem of the unidentified or otherwise ‘problematic’ copyright owner to the declared collecting society, and, secondly, by permitting the working out of equitable remuneration by reference to a sampling system rather than by more cumbersome methods. It assists copyright owners too, both in the latter respect, and by facilitating protection of them if, for whatever reason, they have not assigned their copyright to, or appointed as their agent, an appropriate organisation.
11 Sections 153F and 153J are relevant to the present application. Subsections 153F(1), (2), (4), (5) and (6) provide:
‘(1) A company limited by guarantee may apply to the Tribunal for a declaration that the company be a collecting society for the purposes of Division 2 of Part VII.
(2) The parties to the application are the applicant and any person made a party by the Tribunal.
(3) …
(4) After giving each party an opportunity of presenting its case, the Tribunal must:
(a) declare the applicant to be a collecting society for the purposes of Division 2 of Part VII; or
(b) reject the application.
(5) A declaration of a company as a collecting society for the purposes of Division 2 of Part VII may be a declaration in relation to:
(a) all government copies; or
(b) a specified class of government copies.
(6) The Tribunal may only declare the applicant to be a collecting society if the Tribunal is satisfied:
(a) that the applicant is a company limited by guarantee incorporated under a law in force in a State or Territory relating to companies; and
(b) in the case of an application for a declaration in relation to all government copies, that the applicant’s rules permit the owner, or the agent of the owner, of the copyright in any copyright material to become a member; and
(c) in the case of an application for a declaration in relation to a class of government copies, that the applicant’s rules permit the owner, or the agent of the owner, of the copyright in any copyright material a reproduction of which in accordance with section 183 would be within that class to become a member; and
(d) that the applicant’s rules prohibit the payment of dividends to its members; and
(e) that the applicant’s rules contain such provisions about all of the following matters as are adequate for the protection of its members:
(i) the collection of remuneration payable under section 183A;
(ii) the payment of administrative costs of the collecting society out of remuneration it collects;
(iii) the distribution of remuneration the collecting society collects;
(iv) the collecting society holding on trust remuneration for owners of copyright in copyright material who are not members of the society;
(v) access to the collecting society’s records by its members; and
(f) that the applicant’s rules contain such other provisions as are required by the regulations to be included for the protection of members of the society.
(7) …
(8) …’
12 Finally, subsections 153J(1) and (2) provide as follows:
‘(1) If:
(a) a declaration (the previous declaration) is in force under section 153F; and
(b) the Tribunal, under that section, declares another company to be the collecting society for the purposes of Division 2 of Part VII in relation to a class of government copies that includes some of the government copies to which the previous declaration relates;
the Tribunal must amend the previous declaration so as to exclude from the government copies to which it relates all government copies to which the declaration of the company referred to in paragraph (b) relates.
(2) An amendment of a declaration under subsection (1) takes effect when the declaration of the company referred to in paragraph (1)(b) takes effect.’
13 It follows that if ASCCL’s application to be a declared collecting society succeeds, CAL’s own declaration must be amended.
BACKGROUND FACTS
The parties
ASCCL
14 ASCCL is based in Queensland. A company called ‘The Association of Consulting Surveyors (Queensland) Limited’ was incorporated on 28 September 1982 as a company limited by guarantee. Its members include consulting surveyors in private practice who are licensed to undertake cadastral surveys under the Surveyors Act 1977 (Qld). This company changed its name to ‘Spatial Queensland Limited’ and I will refer to it as ‘SQL’. SQL caused ASCCL to be formed as a company limited by guarantee on 3 April 2003, and is the only member of ASCCL. On 11 April 2003, eight days after its incorporation, ASCCL launched this proceeding.
15 SQL serves the interests of its members in various ways. It publishes a journal called ‘The Queensland Consulting Surveyor’, has an interactive web portal for the surveying profession, and represents Queensland consulting surveyors in dealings with the Institution of Surveyors Australia, the Institution of Surveyors Queensland and the Queensland State Government. SQL also represents its members in negotiations with those who provide services to consulting surveyors, and it provides business support services to its members.
16 In 1996, SQL commissioned the carrying out of research into ‘the value of the intellectual property and goodwill of the profession of consulting surveyors in Queensland’ and ‘the shift in value from the Queensland Profession to the Department of Natural Resources [of Queensland] [‘DNR’]’ Subsequently, SQL caused Spatial Information Technology Enterprises Limited (‘SITE’) and Spatial Data Exchange Pty Ltd to be incorporated for the purpose, according to an affidavit of Jack de Lange, the Chief Executive Officer of ASCCL, of ‘exploiting surveyors’ copyright’. In cross-examination, Mr de Lange said of SITE:
‘Spatial Information Technology Enterprises was set up as a not for profit association to be a business incubator to look at ways of finding commercial things to do with the surveyors' copyright. If it found projects that it could do on behalf of surveyors as a whole that they wouldn't be able to do themselves because they are all very small businesses, by bringing them collectively together they may be able to do some projects and if there were those projects then it would set up trading entities to carry out those projects and Spatial Data Exchange is the first of those.’
Shortly afterwards, the following exchanges occurred between senior counsel for CAL and Mr de Lange:
‘Were some of the potential business enterprises that were in the minds of their founders, including you, when SITE was set up, did they include the possibility of outsourcing some government functions that relate to surveyors? --- Yes.
We've seen in one or two places in the documents a phrase “blue tin”. Is that an in-house nickname for SITE? --- Yes. In essence, yes. Or one project that SITE might undertake.
By the way, if any of this is confidential let us know, but what project was that? --- It was the digital cadastral or database for the whole of Queensland which currently is done by the government and copies of it are or extracts from it or products from it are sold by the government. On the white board that we have this initial planning the government was a brown tin and we put it into a blue tin for the private sector.
Representing, in effect, a privatisation or an outsourcing of that government function? --- Well, whatever it ended up being, yes, but being essentially managed by the private sector.’
17 Since 1997, Mr de Lange has been involved in negotiations, on behalf of surveyors, with DNR.
18 Mr de Lange lists as follows the nature of the works that surveyors make or produce, or may in the future make or produce, in the course of their professional activities:
survey plans
design plans
as-constructed plans
mining plans
permanent mark plans
topographic plans
hydrographic plans
aerial photos and their derivatives
survey reports
level books
electronic data recorder information
19 Commencing on or about 17 January 1997, SQL discussed with representatives of DNR the copying by DNR of works in which the members of SQL claimed to own copyright. SQL sought the assistance of CAL to negotiate a licensing arrangement. On or about 8 July 1998, SQL became a member of CAL. That was six months before CAL was declared a collecting society (on 18 December 1998) as mentioned earlier.
20 According to Mr de Lange, discussions between CAL and DNR were inconclusive. He says that as a result of that ‘failure’, in or about January 2000, SQL decided to attempt to negotiate directly with DNR.
21 On 1 March 2001, a trust deed was entered into by Gerard William Batt as settlor and The Association of Consulting Surveyors (Queensland) Ltd, now SQL, as trustee, by which a unit trust called The Australian Copyright Trust (‘the Trust’) was established. In order to become a holder of units in the Trust, a person is required to own copyright in something created during the normal course of the person’s practice as a surveyor, and to execute a deed vesting in SQL as trustee of the Trust, the person’s copyright in anything already or subsequently so created. By the deed, SQL grants back to the person a licence to make any use of the assigned copyright, whether for personal or commercial use, except where the use would compete with an exclusive licence granted by, and in the absolute discretion of, SQL as trustee of the Trust.
22 On 10 August 2001, SQL entered into a written ‘Copyright Agreement’ with the State of Queensland through DNR for the payment to SQL of monies in respect of past and current copying of ‘survey plans’ by the State. In the agreement, ‘Survey Plans’ were defined to mean drawings, maps or plans, in any format, including digital or electronic format, prepared by a surveyor licensed under the Surveyors Act 1977 (Qld) or its predecessors, and which were lodged with DNR, or lodged or intended to be lodged for registration in various ‘Land Registers’ maintained by DNR under various Queensland statutes. SQL entered into the Copyright Agreement in its capacity as trustee of the Trust.
23 I will discuss the terms of the Copyright Agreement in more detail below (see [136] – [138]). At present it can be noted that there was a significant omission from the copying in respect of which SQL was to be paid remuneration by the State.
24 Mr de Lange states that the members of some 90 percent of survey firms practising in Queensland which lodge approximately 90 percent of the plans that are lodged annually with DNR and other departments and agencies of the Queensland State Government, have executed vesting deeds in favour of SQL (and become holders of units in the Trust). Mr de Lange estimates that, as a result, SQL, as trustee of the Trust, owns the copyright in approximately 85 percent of all survey and other plans that are lodged with DNR and are available in the public domain in Queensland. He states that, since the formation of the Trust, SQL has collected approximately $300,000 ‘by way of royalties for the use of copyright material which it holds on trust’.
25 DNR informed SQL, however, that it was troubled in relation to the owners of copyright in survey plans lodged with it or lodged or intended to be lodged in the Land Registers, who had not executed deeds vesting their copyright in SQL. Accordingly, on or about 20 September 2002, SQL resolved to form a company with a view to its applying under s 153F of the Act to be declared a collecting society for the purposes of Div 2 of Pt VII of the Act. The resulting formation of ASCCL was noted at [14] above.
26 I will now address the question whether ASCCL satisfies the criteria laid down in s 153F(6) (set out at [11] above). CAL accepts that ASCCL, considered in isolation, does so. CAL submits, however, that ASCCL does not satisfy the policy underlying the criteria in s 153F(6) because it has but one member, SQL, it its capacity as trustee of the Trust, and that this structure, including the terms of the Trust, does not satisfy the statutory criteria. I will defer consideration of this submission until later, and, for the present, will address only the constitution of ASCCL itself. Irrespective of CAL’s concession, the Tribunal must be satisfied that ASCCL’s constitution meets the criteria of s 153F(6).
27 ASCCL is a company limited by guarantee and therefore satisfies the criterion stated in par 153F(6)(a) of the Act( set out at [11] above).
28 Since ASCCL is not applying for a declaration in relation to all government copies, it is par (c), rather than par (b), of s 153F(6) against which ASCCL’s ‘rules’ are to be tested. Clause 9 of ASCCL’s constitution provides that any person is eligible to become a member of ASCCL if either the person is a ‘Copyright Owner’ as defined in the constitution, or the directors consider the person fit to be a member. Clause 11 provides that if the directors consider that the applicant is eligible for admission, they must admit the applicant as a member. The expression ‘Copyright Owner’ is defined in cl 1 of the constitution to mean:
‘any author of the Copyright Material being the owner of the Rights in that Copyright Material, or the licensee or agent appointed in writing, executor, administrator, successor or assignee of such right.’
The expression ‘the Rights’ is defined to mean ‘the right[s] to reproduce or communicate Copyright Material in any material form’. The pivotal expression ‘Copyright Material’ is defined to mean the copyright material described in ‘the Declaration’, and ‘Declaration’ is defined to mean a declaration of ASCCL under s 153F as the relevant collecting society for the purposes of Div 2 of Pt VII of the Act.
29 The criterion of eligibility for membership may suggest circularity: eligibility depends on the terms of any declaration to be made by the Tribunal, and until a declaration is made, the only persons eligible to be members of ASCCL are persons whom the directors consider fit to be members. Yet the Tribunal may make a declaration only if it is satisfied that ASCCL’s rules permit the owner, or the agent of the owner, of the copyright in any Copyright Material, a reproduction of which in accordance with s 183 would be within the class of government copies the subject of the declaration, to become a member of ASCCL. I do not think, however, the suggested circularity to be a problem, because the criterion refers to the position as it would be after making of the declaration sought. If a declaration is made in the present case, ASCCL’s rules will permit a Copyright Owner (as of right) to become a member.
30 I turn now to the criterion specified in par (d) of s 153F(6) of the Act (see [11] above). Clause 7 of ASCCL’s constitution provides that its ‘income and property … however derived’ must be applied solely towards the promotion of its objects, and that ‘no part shall be paid or transferred directly or indirectly to or among’ its members. This provision goes further than to ‘prohibit the payment of dividends’. Clause 7 clearly satisfies the criterion specified in par (d), but it also appears to prohibit the distribution of the remuneration collected by ASCCL, to its members.
31 Clauses 65, 66 and 67 of ASCCL’s constitution contain provisions touching the five matters referred to in subpars (i)–(v) of par (e) of s 153F(6) (see [11] above).
32 Subparagraph (i) of par 153F(6)(e) concerns:
‘the collecting of remuneration payable under s 183A.’
ASCCL’s constitution uses the expression ‘Collected Funds’ to refer to all equitable remuneration paid to ASCCL in respect of ‘Government Copies’, the expression ‘Collected Fund’ to mean the trust fund of which ASCCL is the trustee established pursuant to cl 65(a) of the constitution, and the expression ‘Government Copies’ to refer to ‘a reproduction in material form of Copyright Material made under subsection 183(1) of the Act by the Commonwealth or a State’. Clause 3 of the constitution states the objects for which ASCCL is established, and one of those is:
‘to operate [as] a Collecting Society for the benefit of [ASCCL], members of [ASCCL], and those whose copyrights are dealt with by [ASCCL] regardless of membership of the company, in accordance with Division 3 of Part VI and Division 2 of Part VII of the Act.’
The expression ‘Collecting Society’ is defined to mean ‘a company in respect of which a Declaration is in force’.
33 I think the provisions to which I have just referred, although very generally expressed, are ‘provisions about … the collection of remuneration payable under section 183A … adequate for the protection of [ASCCL’s] members’.
34 I turn next to subpar (ii) of par 153F(6)(e) (see [11] above), which refers to:
‘the payment of the administrative costs of the collecting society out of remuneration it collects.’
Clause 64 of ASCCL’s constitution provides as follows:
‘Moneys received by the Company from all sources, other than Collected Funds, shall be held as a separate fund to be applied as follows:
(a) in payment to the Company of all expenses and other amounts properly chargeable by the Company;
(b) if the Directors so determine, such amounts as the Directors may consider proper for such special purposes (including cultural and/or charitable purposes) as the Directors think fit not exceeding 1% of all such moneys received;
(c) such amounts as the Directors consider to be reasonable to meet the anticipated expenses of and incidental to the collection, allocation and distribution of Collected Funds of current or future Accounting Periods.’
Clause 65(a) provides for the creation of the ‘Collected Fund’ and for the payment into it of, inter alia, the Collected Funds. Clause 65(b) provides for payment of the following amounts out of the Collected Fund to ASCCL:
‘(i) all proper and reasonable expenses of and incidental to the collection, allocation and distribution of Collected Funds for that Accounting Period;
(ii) such amounts as the Directors consider to be reasonable to meet the anticipated expenses of and incidental to the collection, allocation and distribution of the Collected Fund of future Accounting Periods;
(iii) if the Directors so determine, such amounts as the Directors may consider proper for such special purposes (including cultural and/or charitable purposes) as the Directors think fit not exceeding 1% of the Equitable Remuneration received by the Company for the Accounting Period in respect of which the payment is made; and
(iv) if there are insufficient funds collected under Clause 64, such amounts to meet the expenses and other amounts properly chargeable by the Company.’
The payment of the administrative costs of ASCCL out of the remuneration it collects is constrained by notions of reasonableness and propriety. I think the constitution adequately protects members in this respect.
35 I turn next to subpar (iii) of par 153F(6)(e) (see [11] above), which refers to:
‘the distribution of remuneration the collecting society collects.’
36 Clause 65 of ASCCL’s constitution permits payment to ASCCL from the Collected Fund of certain amounts, such as, ‘all proper and reasonable expenses of and incidental to the collection, allocation and distribution of Collected Fund [for the accounting period in question]’. After payment of these allowed amounts, ‘the residue of the Collected Fund must be allocated, distributed or applied in accordance with Clauses 66 and 67’: cl 65(c).
37 Clause 66(a) requires the directors to fix and determine, not less than once in respect of each accounting period (of not more than 12 months), the entitlement of any person to a share of the residue of the Collected Fund of that accounting period. Clause 66(b) provides:
‘Entitlements of persons to the residue of the Collected Fund shall be determined in accordance with the scheme of allocation determined by the Directors in respect of each Accounting Period having regard to, but without limitation, the extent of copying of the relevant Copyright Material and the Company’s obligations under arrangements with other copyright collecting societies, professional associations or similar bodies.’
38 Clause 66(c) provides, however, that the directors must not make any binding arrangement, collateral to any scheme of allocation, regarding the future exercise of their discretion to make a determination under cl 66.
39 Clause 66(d) obliges the directors to take all reasonable steps to ensure that any person’s entitlement to a share of the residue of the Collected Fund is determined ‘equitably and accurately’, and entitles the directors to consider all relevant matters in making their determination, including, but without limitation, the extent to which copying of relevant Copyright Material has occurred as disclosed by records of copying, the results of independently conducted sampling, and such other information as may have been obtained by ASCCL designed to ascertain the nature and extent of copying of relevant Copyright Material. Allocations of the residue of the Collected Fund by the directors are to be conclusive and binding on all members of ASCCL (cl 66(f)), and the directors are required to distribute the residue of the Collected Fund to members, and such other persons as may be entitled to distributions pursuant to Clause 66, as soon as practicable after allocation (cl 66(g)).
40 I turn now to subcl 66(h). There is arguably a conflict between this subclause and subcl 66(c) noted at [38] above. Subclause 66(h) provides that any scheme of distribution of the residue of the Collected Fund fixed by the directors must comply with the terms and conditions of any agreement in force from time to time between ASCCL and any member. If it had proved to matter, I would have needed the assistance of further submissions in regard to this possible inconsistency.
41 More importantly, there is arguably a conflict between cl 7 referred to earlier and cl 66(g) referred to at [39] above. If it had proved to matter, I would have needed further submissions in this regard also.
42 There is in evidence a draft scheme for the distribution of royalties which Mr de Lange states has been prepared for approval by ASCCL’s directors. He expects that the directors will approve of the scheme, which, he says, was in fact previously approved by the directors of SQL as trustee for the Trust. I do not consider this proposed scheme because it lies outside the scope of ASCCL’s ‘rules’ that are referred to in s 153F(6) and can be changed by ASCCL’s directors.
43 I turn next to subpar (iv) of par 153F(6)(e) (see [11] above). That subparagraph reads:
‘the collecting society holding on trust remuneration for owners of copyright in copyright material who are not members of the collecting society’.
44 Clause 67 requires ASCCL to establish and maintain a separate trust account into which must be paid, inter alia, from the Collected Fund ‘monies to which a non-member would be entitled if he were a member’, monies to which a member who cannot be located is entitled, and monies the entitlement to which is disputed (‘the Trust Account’). Clause 67(c) provides that monies transferred to the Trust Account are to be held for the members or other persons to whom they were allocated, absolutely upon and by virtue of the circumstances which led to the transfer of the monies to the Trust Account, ceasing to apply within the Trust Period (the ‘Trust Period’ is four years or such further period not exceeding two years determined by the directors, from the end of the accounting period in respect of which the monies were transferred to the Trust Account). Accordingly, if, during the Trust Period, the non-member concerned were to become a member, or the member entitled were located, or the dispute over entitlement were resolved, the person concerned would then become absolutely entitled to be paid.
45 An effect of cl 67(c) is that a non-member has at least four years from the end of the relevant accounting period in which to become a member of ASCCL and become absolutely entitled to payment.
46 In their application to subpar 153F(6)(e)(iv), the opening words of par 153F(6)(e) are somewhat odd. They require that the provision about the holding of remuneration on trust for non-members be adequate for the protection of members. As it transpires, I think that cl 67 is adequate for both the protection of members and the non-member in question, subject to the problem arising from cl 7 referred to earlier.
47 I turn, finally, to subpar (v) of par 153F(6)(e) (see [11] above):
‘access to the collecting society’s records by its members’.
Clause 13 of ASCCL’s constitution provides that except as otherwise provided by the constitution, each member of ASCCL is entitled to access its records at its premises during the hours of 8.30 am to 5.00 pm Monday to Friday, except Public Holidays. This provides adequate protection of members of ASCCL in the present respect.
48 It is not suggested, with reference to par (f) of s 153F(6) (see [11] above), that there are regulations which require an applicant’s rules to contain other provisions.
CAL
49 Evidence relating to CAL was provided in an affidavit sworn 19 August 2003 by Michael Henry Fraser, CAL’s Chief Executive. Mr Fraser has been Chief Executive of CAL since 1986. He holds, or has held, numerous significant copyright-related positions, and has, for example, frequently given lectures and talks internationally at the invitation of the World Intellectual Property Organisation, foreign governments, rightsholders and other groups. He is a founding director of the International Federation of Reproduction Rights Organisations and is currently the Vice President of that organisation. Mr Fraser states that the collective, practical and efficient management of copyright is complex, and that there are significant costs associated with copyright management systems, surveys of copying and the distribution of fees. He states:
‘Each of these areas of administration requires a high level of expertise and expensive dedicated infrastructure. CAL has this expertise and infrastructure in place.’
50 Mr Fraser refers to the fact that there are other collecting societies which administer different licence schemes, such as AMCOS and Viscopy, which are members of CAL. He states that, for the works in respect of which CAL is the declared collecting society, it can be seen to administer the statutory licence ‘on behalf of’ such other collecting societies in so far as it relates to the categories of works with which they are concerned. He makes the submission:
‘This indicates that in the industry of collective copyright administration there is at least a broad acceptance of the idea that it is preferable for a single society to administer particular statutory licences for a class of works.’
51 Mr Fraser also expresses the opinion that it is advantageous to the users of copyright material to have to deal only with a single collecting society. He adds:
‘It is my belief that considerable confusion and burden of duplicating administration can arise if licences for a particular type of copying are available from multiple sources.’
52 CAL was incorporated in 1974 with the support of the Australian Society of Authors (‘ASA’), the Australian Publishers Association (‘APA’) (then called the Australian Book Publishers Association), and the Australian Copyright Council (‘ACC’). CAL established an office in January 1986. It is a not-for-profit company limited by guarantee, and its members are owners or controllers of copyright works in Australia (‘rightsholders’).
53 CAL is the declared collecting society, approved by the Attorney-General for the purposes of Part VB of the Act (reproduction and communication of works by educational and other institutions), and, as noted earlier, is the collecting society declared by this Tribunal in respect of the copying of works under s 183 of the Act (government copying).
54 The board of directors of CAL comprises up to nine directors. Two directors are appointed by the ASA and one director is an ‘Author Member’ of CAL elected by its Author Members. Two directors are nominated by the APA and one director is a ‘Publisher Member’ of CAL elected by its Publisher Members. Those six directors must appoint an ‘Independent Director’. The directors may, at any time appoint, one or two further Independent Directors, making a maximum total of nine directors. In fact, there are nine directors at present.
55 Rightsholders may join CAL as an Author Member or as a Publisher Member, and some join as both. As at 30 June 2003 CAL had 4,308 author members and 2,487 publisher members. Persons can become members on their own account or as agents for other rightsholders. For example, publishers and literary agents may join CAL on behalf of the authors they represent. Through its membership agreements, CAL represents in Australia 8,036 authors and 12,968 publishers.
56 Many authors join CAL directly. In addition, CAL represents journalist members of the Media, Entertainment and Arts Alliance through an agreement with that organisation.
57 CAL represents overseas rightsholders through their agents in Australia and through bilateral agreements with copyright collecting societies in 16 countries.
58 Directly and indirectly, CAL represents many hundreds of thousands of authors and publishers.
59 CAL undertakes a range of activities to educate its members about copyright and about CAL’s activities. It produces a quarterly newsletter, ‘CALendar’, which is directed to its members and is also sent to key licensees and government representatives. CAL produces other publications including ‘Becoming a member of CAL’ and ‘It’s Your Claim’, as well as its annual report. CAL also produces information sheets (currently numbering 66) and articles in industry magazines, including, recently, an article for the newsletter of the Association of Consulting Surveyors NSW. CAL:
- maintains an extensive website;
- funded the Centre for Copyright Studies for more than eight years ending in 2002;
- offers free ‘update’ seminars for members and for licensees (on 4 August 2003, a CAL lawyer gave a presentation on surveyors and copyright at the annual conference of the Association of Consulting Surveyors NSW);
- maintains close relations with key industry bodies, including the APA, the ASA and the Association of Consulting Surveyors Australia (‘ACSA’); and
- receives and responds to numerous inquiries on a day to day basis from members and licensees.
60 According to Mr Fraser’s affidavit, CAL has in place many policies and procedures for the benefit of members, including those relating to:
(a) the making of complaints about CAL;
(b) dispute resolution between CAL and members or licensees;
(c) the resolution of disputes between members of CAL;
(d) CAL’s ‘Corporate Governance Statement’; and
(e) CAL’s ‘Distribution Rules’.
61 CAL complies with the Code of Conduct for Copyright Collecting Societies. On 26 September 2003, the Hon JCS Burchett QC, as ‘Code Reviewer’, reported on his review of ‘Copyright Collecting Societies’ Compliance with their Code of Conduct for the Year 1 July 2002 to 30 June 2003’. There is no suggestion of any non-compliance by CAL with the Code, and, the report records that in the period under review CAL ‘had no complaints or disputes’.
62 CAL collects licence fees for copying under the licences which it administers, and distributes the fees it collects, less its administrative expenses, to rightsholders. It produces millions of records made by licensees under sampling and manual or automated record keeping systems, in order to enable the number of copy pages made under licences to be determined, and to identify the works copied, their authors and publishers, and the rightsholders in respect of them. Distributions are made in accordance with schemes of allocation determined by CAL’s board of directors from time to time. CAL currently makes ten distributions annually. Mr Fraser asserts that once a distribution is declared, the amounts are paid to rightsholders as soon and as efficiently as possible. CAL also makes submissions to government on copyright-related policy issues, gives advice and information to its members, licensees and the general public regarding copyright management and copyright law, and represents its members before this Tribunal.
63 The core of CAL’s business is the administration of the statutory licences which allow educational institutions to make copies and communications of copyright works for educational purposes, and the Commonwealth, State and Territory Governments to make copies for the services of the Commonwealth, States or Territories. CAL also administers the licence under the Act for copying by institutions for people with print or intellectual disabilities.
64 On 13 June 1990 CAL was declared under s 135ZZB(1) of the Act to be the collecting society for the purposes of Part VB of the Act for the owners of copyright in works, other than works included in a sound recording or a cinematograph film. As noted earlier, on 18 December 1998, CAL was declared by this Tribunal to be the collecting society for the purposes of s 183A of the Act for government copying of a work, other than a work that is included in a sound recording, a cinematograph film or a television or sound broadcast.
65 The licence fees under the statutory licences for educational institutions and governments are based on the volume of copying as disclosed by sampling surveys of the copying, and a fee per page copied. Mr Fraser states that CAL’s aim is to obtain equitable remuneration, and he expresses the opinion that this is best achieved by the payment of a fee based on use.
66 In addition to administering the statutory licences, CAL also makes voluntary contractual licence arrangements with organisations which copy and communicate copyright works, such as local government councils, corporations, private teaching institutions, media monitoring organisations, document delivery services, associations and churches. Under each of the licence schemes, CAL collects fees for copying and often also for communication. All licence schemes administered by CAL operate on a non-profit basis – administrative costs are deducted from the licence fees received and the balance is distributed to members in accordance with the results of the relevant sampling survey of copying and communication, or the results of record keeping by each class of licensee.
67 Until the Act was amended with effect from 30 July 1998 by the Copyright Amendment Act (No 1) 1998,governments were required to negotiate with copyright owners. CAL was appointed by many of its members to negotiate and collect payments on their behalf under s 183 of the Act. CAL entered into voluntary agreements with Commonwealth, State and Territory Governments in respect of photocopying of certain CAL members’ works under s 183 of the Act. The first such agreement was entered into in 1994. That was an Agreement dated 19 September 1994 between CAL and the State of New South Wales (‘NSW’). Supplementary agreements were entered into between CAL and NSW on 22 May 1996, 19 December 1997, and 6 October 2000 (the last post-dating CAL’s declaration as a collecting society on 18 December 1998). With the State of Queensland, CAL entered into an Agreement on 24 May 1995, a Deed of Variation to Copying Agreement on 4 August 1997, a State Copying Remuneration Agreement on 7 July 2000 and a Deed of Variation on 29 May 2001.
CAL, surveyors and the present dispute
68 From 1994 to 1998, CAL had virtually no members who were surveyors, and government copying of surveyors’ plans was not licensed by CAL.
69 Since the 30 July 1998 amendments, and, in particular, since the declaration of CAL as the relevant collecting society shortly afterwards on 18 December 1998, CAL has been in negotiation with governments to settle new terms for government copying. (In relation to pre-18 December 1998 government copying, the liability of governments under ss 183(4) and (5) still exists.) Mr Fraser states that the negotiation on behalf of government is undertaken by representatives of the eight State and Territory Attorneys-General’s Departments, which coordinate comments from other departments. He says that CAL’s negotiations with the representatives in respect of a new agreement for photocopying of works under the statutory licence are continuing, and that no agreement has been reached regarding photocopying of survey maps and plans. He adds that negotiations relating to the electronic copying and communication of survey maps and plans have, in fact, ‘broken down’. In the meanwhile, however, CAL and the State and Territory Governments have entered into a number of agreements varying the pre-18 December 1998 voluntary agreements, the purpose of the variations being to bring payments up to date pending the conclusion of a new agreement.
70 In mid 1997, the Association of Consulting Surveyors Australia (‘ACSA’) approached CAL about various copyright issues. (Although I will continue to refer to ACSA, ACSA’s role has apparently, at least to some extent, since 2001 become merged in the role and activities of a broader Australian Spatial Information Business Association (‘ASIBA’).) According to Mr Fraser, ACSA was concerned about the following:
‘(a) a pilot project of digital plan lodgment and examination by the Land Titles Office Sydney, which would lead to these plans being used as a foundation for a digital cadastral database. A similar exercise was also planned in other states;
(b) the fact that government bodies were not notifying copyright owners of new government uses of survey maps and plans under the Act;
(c) commercial uses of lodged survey maps and plans; and
(d) about copyright in survey maps and plans generally.’
CAL understood that ACSA wished to ensure that:
‘(a) governments (at a State level, but in particular those relevant departments most using surveyors’ maps and plans) were acknowledging surveyors’ copyright in plans lodged, deposited or used by government; and
(b) surveyors achieved fair payment for the use of their intellectual property by government, including by instituting a method or methods by which use is determined and fair payment collected on behalf of surveyors.’
71 CAL encouraged surveyors to become members of CAL. In mid 1998, owners of copyright in survey maps and plans began to join CAL. Mr Fraser states that CAL currently (as at the date of his affidavit, 19 August 2003) has 260 members who are surveyors. In respect of surveyors, CAL has, generally speaking, liaised with ACSA, which, in turn, has liaised with the State associations of consulting surveyors. Since 1997, however, CAL has often liaised directly with the latter. In particular, it has had many dealings with the Association of Consulting Surveyors NSW (‘ACS NSW’) and the Association of Consulting Surveyors Queensland (‘ACSQ’). Mr Fraser states:
‘In summary as well as its role in negotiating with government and collecting payment for use, CAL has:
(a) provided an educational role to its surveyor members. CAL has included pieces on surveyors’ copyright in CAL’s member newsletter. Representatives of CAL have attended and spoken at a number of surveyor seminars; have contributed pieces on surveyors’ copyright in association newsletters;
(b) commenced negotiations with other users of survey maps and plans, for example local government. Around eight local councils have signed licence agreements with CAL which allow them to copy CAL members’ survey maps and plans; and
(c) given general advice on copyright issues to surveyors, for example the drafting of copyright notices; and clauses in contracts in relation to copyright.’
72 On 19 August 1997, representatives of CAL and ACSA met with representatives of ACSQ in relation to the management of surveyors’ intellectual property rights across Australia. ACSQ had already commenced negotiating with DNR. At the meeting, the representatives of CAL and ACSA expressed concern that any dealings between ACSQ and DNR should not compromise the claims of other surveyors in Australia. It was agreed that CAL would assist ACSQ in its future dealings with DNR.
73 On 22 October 1997, DNR responded to a log of claims which ACSQ had previously put to it. DNR said it would not pay for the use of survey plans in its Land Registry, asserting that the State had an implied licence by operation of law to do with survey plans those acts necessary to conduct the Land Registry’s functions. According to the letter, however, DNR was prepared to negotiate on other aspects of ACSQ’s claims. The letter invited ACSQ to prepare a brief summary of its position. In the letter DNR said it was unable to be satisfied that ACSQ had ‘the necessary standing to make binding arrangements’, and that there was no evidence that it had ‘acquired the relevant copyright or [had] the express authority of its members to deal with their property’. The letter noted that ACSQ was ‘not representative of all copyright owners’. The letter continued:
‘… as a starting point, the State would suggest that the Association put in place a mechanism to achieve the position of creating one body able to deal with the State on behalf of all surveyors and with full authority to deal with the intellectual property rights of individual surveyors and firms. A collecting society is the type of model that has been suggested.’
74 On 4 November 1997 ACSQ replied, stating, inter alia:
‘We note your concerns in respect of authority and collection management. In fact our national body, ACSA, is engaged in high level negotiations with Copyright Agency Limited to have a single, properly constructed, Australia-wide collection agency. At our next meeting, we intend to have representation from both CAL & ACSA in attendance and be in a position to detail our collections society arrangements.’
75 On 25 November 1997 ACSQ wrote to DNR noting its contention that it had an implied licence to reproduce survey plans, and enclosing a statement of ACSQ’s ‘goals and objectives’. According to the statement, ACSQ’s intention was that Queensland surveyors would be represented in negotiations with DNR, among other users, copiers and ‘aggregators’ of surveyors’ intellectual property, by CAL, which ACSQ described as follows:
‘… an organisation specifically set up to administer the collection of due reward for use of intellectual property or other arrangements. CAL representatives have the necessary expertise to professionally manage collection and distribution. Our Association will also be present so that there is consistency between States.’
76 On 12 January 1998 DNR wrote to ACSQ advising that DNR had Cabinet approval to commence negotiations over DNR’s use of survey plans with ‘a recognised collecting agency representing surveyors in Queensland’. The letter asked ACSQ to confirm which agency would be representing ACSQ in the negotiations and whether that agency represented ‘all surveyors in Queensland’.
77 On 24 April there was a meeting of representatives of CAL, ACSQ, ACSA, DNR and Queensland Crown Law, and on 10 June 1998, a further meeting.
78 At a meeting on 22 October 1998 attended by representatives of ACSQ, ACSA, CAL and DNR, the representative of CAL informed those present that the Act had been amended to provide for the declaration of a collecting society in respect of government copying, and that CAL had applied to this Tribunal to be so declared. Following the meeting, CAL, ACSQ, ACSA and DNR entered into ‘without prejudice’ negotiations in respect of past and current copying of surveyors’ maps and plans. The negotiations were in respect of both ‘hard’ and ‘electronic’ copying. They occupied the parties until about mid 1999. Mr Fraser’s affidavit states:
‘86. The ACSA IP Taskforce, a taskforce that had been set up specifically to pursue surveyors’ IP claims across Australia, set out to CAL and the ACSQ that any agreement with the DNR could only be entered into if certain benchmarks were contained in the agreement. These were:
(a) that the DNR pay an amount for past copying;
(b) that an amount be paid annually to cover section 183 copying and that this amount be based on a rate times number of copies of plans;
(c) that an annual amount be paid in relation to the commercial sales of the Digital Cadastral Data Base (DCDB);
(d) surveyors reserve their rights in respect of reproduction of their material in the DCDB; and
(e) surveyors reserve their rights in respect of implied licence of their material held, used and copied by the DNR.
87. CAL was also of the view that, based on the negotiations to date, CAL could not indemnify the DNR against any claim from any surveyor, who at the relevant time, was not a member of CAL.’ (emphasis in original)
79 There was meeting in Brisbane on 8 June 1999 attended by representatives of ACSA, ACSQ and DNR (during the course of the day, Mr McNamara, representing ACSA, was in telephone contact with Mr Kyrios of CAL in Sydney). The following day, 9 June 1999, Mr McNamara wrote to Mr Kyrios recounting what had happened at the meeting. He said of a separate session between him and the representatives of ACSQ (referred to as ‘CSQ’ by Mr McNamara in his letter):
· ‘CSQ considered that all that the DNR had available to offer was $100k per year to surveyors in total plus about $150k for past claims.
· This was agreed to be inadequate and far below what was appropriate.
· CSQ wanted to achieve agreement without legal action.
· I stated that I believed that ACSA and CAL would not support agreement to such rates as this was contrary to everything we had worked on to date.
· Nevertheless CSQ wanted to see if this was the DNR limit and subsequently put a general price proposal to DNR to test the response.’
Importantly, at the meeting, ACSQ and DNR agreed on certain points to be put to CAL and ACSA, and to DNR and the Queensland Cabinet, for approval. As will be seen, ACSQ and SQL later insisted that effect be given to this agreement of June 1999. Mr McNamara’s report to Mr Kyrios concluded:
‘Bill, I was terribly uneasy and unhappy with the whole process of this meeting. I am extremely unhappy with the outcome and the way that CSQ went for a deal that the DNR could deliver with minimum of fuss to them rather than what was just and right for Surveyors.
I believe that if this deal proceeds we have let Surveyors throughout Australia down.
I will be writing to CSQ and ACSA advising them accordingly.
I will be recommending to ACSA that this proposal not be ratified and that we refer the matter of the DNR to you for your advice.’ (my emphasis)
80 On 16 June 1999, ACSQ wrote to Mr Kyrios, among others, stating why he thought ‘the draft agreement [was] good for Queensland surveyors’ and why it ‘[was] not bad for surveyors in other States’. Two of the reasons of the former class mentioned were that the percentage payment (7.5% of DCDB sales):
‘provides incentive for surveying industry to market DCDB, thus building other opportunities,’ (my emphasis)
and the proposed agreement:
‘keeps open other initiatives in train with DNR’. (my emphasis)
In relation to the other States, ACSQ’s letter asserted that each State was different, so that a ‘deal’ in Queensland would not set a precedent for the other States.
81 CAL, through its solicitors, and DNR, embarked on a course of negotiating a form of licence between CAL and the State. On 27 September 1999, DNR wrote to CAL about a draft agreement prepared by CAL’s solicitors, in which DNR stated:
‘DNR does not accept that CAL may reserve its rights to claim fees for DCDB copying covered by this agreement. There is no need to reserve rights thereafter.
Is it not the case that the 7.5% royalty of gross revenue covers all DNR use of survey plans for the DCDB? Certainly, that is DNR’s expectation and desired outcome. DNR does not accept that CAL can claim a second royalty because it says that a plan is reproduced once it is incorporated into DCDB every time that the DCDB is used.
DNR’s position is that 7.5% royalty is the complete fee for DCDB related copying for the term where that copying is not otherwise covered by Part VII of the Copyright Act.’
82 On 20 October 1999 CAL wrote to DNR advising, inter alia, that CAL ‘cannot offer an unlimited indemnity for use outside s 183’.
83 On 13 December 1999, DNR wrote to CAL highlighting ‘the matters upon which there [was] a need for further negotiation’. These matters included the question of the indemnity. The letter suggested a meeting with ACSQ.
84 On 11 January 2000, the Association of Consulting Surveyors South Australia (‘ACS SA’) emailed Mr Kyrios advising him to ‘hold [his] ground’, and referring to a motion passed at the most recent national meeting that any agreement ‘must include a clause which establishes the value of a survey plan’. On 18 January 2000, the Association of Consulting Surveyors Western Australia (‘ACS WA’) wrote to Mr Kyrios, among others, observing that ‘agreement from a majority’ had been obtained ‘on the condition that a value per plan was established rather than a simple lump sum’. The letter stated that if DNR would not agree to this, the issue would have to be voted on again by the representatives of State associations ‘as the goal posts will have moved a considerable distance from where they were’.
85 On 25 January 2000, Mr McNamara of ACSA faxed Mr Kyrios of CAL:
‘As discussed close the matter in Queensland & concentrate on NSW.
We cannot agree with DNR conditions.’
86 On 3 February 2000, ACSQ advised CAL that ACSQ had decided not to participate any longer in ‘the ACSA Intellectual Property project’. The letter advised, however, that ACSQ was still committed to formalising the ‘verbal agreement’ of 8 June 1999 with DNR. The letter expressed ACSQ’s concern over the time being taken to reach an agreement, and continued:
‘Our Association is committed to surveyors getting a fair deal. Our members are becoming very concerned at the time taken to reach agreement. They realise that DNR is only the first step in a large process that will change the way surveyors deal with data. Our members believe that this agreement with DNR is not about fixing past indiscretions but paving the way for the future, by creating new and innovative ways for commercial dealing with information.
In our negotiations with DNR we struck a percentage rate of gross sales of DCDB [Digital Cadastral Data Bases] without upper or lower bounds. We have taken steps to be include[d] in the management committee that oversees the technical and commercial aspects of this data. By having a role in the commercialisation process we have every opportunity to maximise returns.
We recognise that you represent surveyor authors throughout Australia and are mindful of precedents that may adversely affect their opportunities. From our knowledge of the industry there are major differences in the statutes dealing with land and the methodology used by individual state[s] to capture their DCDBs. We fail to see any direct connections that will cause detailed precedents between their agreement with other states.’ (my emphasis)
ACSQ asked ‘as an informed member of CAL’, that CAL:
‘1. Finalise the Draft Agreement with DNR in its current state but without the mention of the figure of $1,000,000 sales per annum as a trigger for renegotiation.
2. Prepare a draft plan for pursuing the matter of copying of plans held in government registries, indicating action to be taken by ACSQ and CAL, timing and likely expenses relevant to ACSQ.
3. Prepare a draft plan for pursuing the copying of surveyors’ data by local authorities, indicating actions to be taken by ACSQ and CAL, timing and likely expenses relevant to ACSQ.’
87 On 2 February 2000 ACSQ wrote to ACSA advising that since the ACSA national Intellectual Property project had begun, ACSQ had found that the situation in Queensland had ‘evolved to include parameters … not applicable in other States and [ACSQ] need[ed] the flexibility to speedily conclude appropriate arrangements with DNR’. The letter advised that ACSQ did not wish to participate any longer in the national Intellectual Property project and asked that ACSA ‘remove [ACSQ] from the task force activities’.
88 There was further correspondence between ACSQ and CAL in which ACSQ insisted that its members desired to accept the agreement which, it asserted, had been reached with DNR in June 1999. ACSQ emphasised that its objective was to build ‘new information businesses in Queensland’ and to create ‘new and innovative ways for dealing with commercial information’, and that the agreement would be ‘about much more than DCDB copying’.
89 On 13 March 2000 CAL advised ACSQ that CAL would consider giving effect to the wishes of ACSQ’s members, but that this could be done only after an agreement was signed with NSW or negotiations with NSW came to an unsuccessful end. CAL suggested, in relation to ACSQ’s desire to conclude the agreement with DNR:
‘Surely on any objective basis this is not a deal worth doing. The claim by ACSQ was for many millions of dollars and yet now you seem prepared to accept an annual payment for less than what the ACSQ expended in commencing this project.’
90 On 23 March 2000 ACSQ responded, challenging certain statements in CAL’s letter; on 10 April 2000, ACSQ inquired of CAL as to progress; and, finally, on 5 May 2000 ACSQ advised CAL that its board had resolved that ACSQ should itself finalise and enter into an agreement with DNR in relation to the copying of survey plans by DNR. ACSQ’s letter concluded:
‘We would ask now that CAL concentrate on the other areas of copying of surveyors’ plans (local governments, other departments, private entities, etc) where the matters inhibiting the agreement with DNR are not an issue.
Please contact me for any assistance in moving into those areas.’
91 On 28 June 2000 CAL wrote to ACSQ advising that ACSQ’s membership of CAL did not prevent it from pursuing the course of action it was proposing, but requesting ACSQ to reimburse it (CAL) for the monies it had expended in pursuing ACSQ’s interests. So far as the evidence reveals, ACSQ has not obliged.
Distributions by CAL
92 The remainder of Mr Fraser’s affidavit describes CAL’s distribution of the remuneration it collects, including its ‘Distribution Rules’. Mr Fraser’s evidence discloses that in the financial period 2001-2002, CAL’s operating costs were $8.1 million and it received licence fees of $41.7 million. The operating costs were therefore 17.84 percent of total revenue, which, according to Mr Fraser, represented a reduction of 6.7 percent on the operating costs of the previous year. Mr Fraser confirms that the remaining 82.16 percent of total revenue was distributed to copyright owners.
93 CAL’s constitution (cll 73(b) and 74(b)(iii)) permits its directors to devote up to 1 percent of all monies received for special purposes (including cultural and charitable purposes). Its directors have resolved to allocate 1 percent of all licence fees for the purposes of a Cultural Fund. In the financial period 2001-2002 the amount allocated to the ‘Cultural Fund’ was $336,000.
94 Mr Fraser testifies that CAL and the State and Territory Governments are still in the process of negotiating an agreement in relation to photocopying under the statutory licence for government copying. He states that the negotiations have included detailed discussions in relation to the copying of survey maps and plans, including the appropriate rate of remuneration and a system for the capture of data. The current survey of government copying was designed when a voluntary agreement was in place between CAL and governments, with the result that no specific provision was made to pick up the copying of survey maps and plans in particular. For this reason, CAL does not receive many copying records from State and Territory Governments in relation specifically to survey maps and plans. Mr Fraser states that once the new agreement, including provision for a monitoring system to record government copying, is reached, CAL will be in a position to make more regular distributions to surveyors for copying undertaken specifically by State and Territory government departments.
95 On 13 May 2003 CAL filed an application in this Tribunal for a determination of a method of calculating the amount of equitable remuneration to be paid in respect of the making of digital copies of surveyors’ plans by the NSW State Government since 18 December 1998 (the date of the declaration of CAL as a collecting society), and to fix the terms for communications that are within s 183 of the Act (proceeding CT 2 of 2003). Other State and Territory Governments have indicated an interest in that proceeding. According to Mr Fraser, CAL expects that the rate determined by the Tribunal in that proceeding may have relevance to copying by those other governments.
96 Distributions continue to be made to surveyor members of CAL from CAL’s other schemes, such as the educational statutory licence.
REASONING
97 In my opinion, the application should be rejected for the reasons which appear below.
‘a specified class of government copies’
98 Section 153F of the Act was set out at [11] above.
99 ASCCL has amended more than once the description of the works, in respect of the government copies of which it seeks to be the declared collecting society. As noted at [2] above, the final description of the scheduled works emerged only after the conclusion of the evidence and on the hearing of submissions. Until then, the description included the element that a surveyor was the author of the work. CAL’s written submissions included an attack on that element. While the omission of that element has now made CAL’s attack based on it irrelevant, CAL submits that the scheduled works now include works of which surveyors are not, or may not be, the authors, with the consequence that ASCCL’s access to the expertise and experience of practising surveyors is, to that extent, rendered irrelevant. An example of such works is ‘aerial photos and their derivatives’. I agree with CAL that this is a problem for ASCCL, but, as will appear, in my opinion ASCCL’s application should be rejected on broader discretionary grounds.
100 The question which arises immediately is whether, as CAL submits, government copies of the scheduled works do not constitute ‘a specific class of government copies’ within s 153F(5), with the result that the Tribunal cannot make the declaration ASCCL seeks. Because I decide below that ASCCL’s application should be rejected on discretionary grounds, I do not find it necessary to resolve this issue. However, because it was extensively debated, I make the following observations in relation to it.
101 The Act does not define ‘class’ or ‘specified class’. The meaning of the expression ‘a specified class of government copies’ in s 153F(5) is to be ascertained by reference to the purpose of the subsection and the context in which the expression is used. Although s 153F occurs in Div 3 of Pt VI of the Act, it provides for the making of a declaration that a company is to be a collecting society for the purposes of Div 2 of Pt VII. Division 2 of Pt VII is concerned with the use of copyright material for the services of the Commonwealth or a State. The relevant ‘statutory licence’ is found in s 183(1) which was set out at [6] above. The scheduled works (see [2] above) are a mixture of artistic and literary works. The ‘act comprised in the copyright’ with which we are concerned is reproduction in a material form (see s 31(1)(a)(i) of the Act).
102 Prior to the commencement on 30 July 1998 of the relevant provisions of the Copyright Amendment Act (No 1) 1998, the obligations imposed on the Commonwealth or a State in respect of the doing by it of any act comprised in the copyright for the services of the Commonwealth or State, were those described in ss 183(4) and (5). Briefly, the Commonwealth or State was required to inform the owner of the copyright of the doing of the act, and the terms for the doing of the act were such terms as were agreed between the copying government and the copyright owner, or, in default of agreement, such terms as were fixed by the Tribunal.
103 As a result of the amending Act, that régime did not apply in relation to a government copy where there was a relevant declared collecting society in relation to the copy. In that case the government would be required to pay to the collecting society in relation to the copy, equitable remuneration based on a method agreed on by the collecting society and the government, or, in default of agreement, a method determined by the Tribunal: s 183A(2). The method of working out equitable remuneration ‘in respect of government copies’ was, inter alia, required to ‘specify the sampling system for estimating the number of copies’: s 183A(3)(b). The method of working out the equitable remuneration payable might provide for different treatment of ‘different kinds or classes of government copies’: s 183A(4). Subsections 183A(3) and (4) applied, whether the method of working out equitable remuneration was agreed or was determined by the Tribunal: s 183A(5).
104 The definition of ‘government copy’ in s 182B(1) of the Act (set out at [5] above) was considered in Audio-Visual Copyright Society Ltd v Australian Record Industry Association Ltd (2000) 47 IPR 40 (Burchett P) (‘Audio Visual 1’) and Audio-Visual Copyright Society Ltd v Australian Record Industry Association Ltd (2000) 103 FCR 507 (‘Audio Visual 2’). (I will use ‘Audio-Visual’ to refer generally to both decisions.)
105 In Audio-Visual 1, Audio-Visual Copyright Society Ltd (‘Screenrights’)applied to be declared a collecting society for the purposes of Div 2 of Pt VII:
‘… in relation to the relevant copyright owners of the following classes of copyright material:
(i) a sound recording; or
(ii) a cinematograph film; or
(iii) a television or sound broadcast; or
(iv) a work that is included in a sound recording, a cinematograph film or a television or sound transmission
in respect of the application of the copyright to the making of a copy of a transmission of a sound broadcast or a television broadcast including (to avoid doubt) a sound broadcast transmitted for a fee and a television transmission to subscribers to a diffusion service.
A “copy of a transmission” means a record embodying a sound recording of the transmission or a copy of a cinematograph film of the transmission; and “making a copy of a transmission” means making a copy of the whole or a part of the transmission”.’
Screenrights’ application was opposed by the Australian Record Industry Association (‘ARIA’) because ARIA (and an associated entity) intended to cause an entity to be established to apply to be declared a collecting society under Div 2 of Pt VII:
‘in relation to the following classes of government copies:
(i) any copy of a sound recording; or
(ii) any copy of a cinematograph film that is a music video,
however such copy is made (including by making of a copy of a transmission of a sound broadcast or a television broadcast, including (to avoid doubt) a sound broadcast, or a television broadcast, transmitted for a fee and including any television transmission to subscribers to a diffusion service).’
106 Burchett J, as President of the Tribunal, answered a preliminary question in Screenrights’ application and referred a question to the Court. In its revised form, the question before the Court was:
‘Is there power in the Copyright Tribunal pursuant to section 153F of the Act to declare two companies to be collecting societies for the purposes of Division 2 of Part VII, for specified classes of government copies, with the effect that in relation to an article, being an article made under section 183(1) of the Act by the copying of a transmission of a sound broadcast or a television broadcast:
(a) one collecting society is entitled under s 183A(2) of the Act to be paid equitable remuneration in respect of the copyright in sound recordings, and cinematograph films that are music videos, reproduced in a material form in that article; and
(b) the other collecting society is entitled under section 183A(2) of the Act to be paid equitable remuneration in respect of the copyright in copyright material (within the meaning of section 182B(1) of the Act) other than sound recordings, and cinematograph films that are music videos, reproduced in a material form in that article?’
107 In Audio-Visual 2 the members of the Full Court unanimously answered this question “No”. In doing so, Lindgren, Lehane and Gyles JJ affirmed the decision of Burchett P in Audio-Visual , holdingthat the expression ‘government copy’ referred to the physical thing which resulted from the act of reproduction under s 183(1), and that there could not be more than one collecting society declared in relation to that physical thing.
108 In Audio-Visual it was easy to see that there were different classes of ‘copyright material’ (the definition was set out at [5] above) embedded in the one article, object or thing. The judgments in Audio-Visual, like all judicial pronouncements,are to be understood in the context of their factual background.
109 There is little evidence before me as to the nature of the government copying of the scheduled works which takes place. Samples of the various kinds of scheduled works are not in evidence, although Mr de Lange described their general nature in his affidavit. There is no evidence that governments would experience difficulty in recognising the scheduled works. The various ‘plans’ included in the scheduled works would apparently include the symbols, codes and legends appearing on them. In any event, the expression ‘survey reports and field notes and other supporting documentation’ seems to be wide enough to include any literary works supporting the plans described. In the absence of evidence to the contrary, I assume that aerial photographs are easily recognised and are distinguishable from photographs taken from a high structure.
110 Let it be assumed that the act of reproduction with which we are concerned is one strike of the button on a photocopying machine, and that the document being copied is an application for development consent. In cross-examination, Mr de Lange agreed that a development application may include a work by a surveyor, such as a topographic plan, and ‘work done by engineers, architects, landscapers etcetera’. If ASCCL’s present application should succeed, ASCCL would be the declared collecting society in relation to the topographic plan and CAL would remain the declared collecting society in relation to the other documents.
111 Audio-Visual is said to raise the question whether, for present purposes, there is in the circumstances hypothesised, one article, object or thing resulting from the pressing of the button, namely, the photocopy of the entire development application, or several articles, objects or things, namely, the photocopies of the surveyors’ topographic plan, the engineering drawings, the architectural plan, the landscape design, ‘etcetera’. CAL submits the former; ASCCL the latter. If the pressing of the button of the photocopying machine is to be determinative, documents having no connection whatever with each other would be required to be treated as one article, object or thing for present purposes, for no reason other than that the person using the machine chooses to copy them en masse rather than separately. It would be surprising that different consequences should flow, for present purposes, according to whether the operator chooses to copy documents together by one press of the button or separately by several presses of the button.
112 The facts in contemplation in Audio-Visual are not on all fours with the facts of the present case. A closer, but still imperfect analogy to Audio-Visual would be a single page of copyright work, in which is embedded other pre-existing copyright work.
113 The Explanatory Memorandum which accompanied the Copyright Amendment Bill 1997 which gave rise to the Copyright Amendment Act (No 1) 1998, (‘the Explanatory Memorandum’), stated in par 158:
‘The provision for a specified class of government copies is intended to cater for the situation where a collecting society’s authority from its members to licence use of their works is limited to only some forms of reproduction, eg. photocopying, and does not extend to others, eg digitisation.’ (my emphasis)
114 CAL submits that this paragraph reveals a legislative intention that governments should be required to deal with only one collecting society, subject to a concession to take account of different forms of reproduction. Examples of forms of reproduction are photocopies, audio-visual copies and copies produced by digitisation. The present application does not seek a declaration of ASCCL as a collecting society by reference to a form of reproduction, such as, all photocopies: CAL would continue to be the declared collecting society in respect of some photocopies and ASCCL would be the declared collecting society in relation to others. Consistently with CAL’s submission, the photocopy of the entire development application discussed above would fall within one specified class of government copies, namely, ‘photocopies’, and governments were intended to have to deal with only one collecting society in respect of the whole of it. I express no view as to the correctness of CAL’s construction of the passage quoted from the Explanatory Memorandum.
115 CAL also calls in aid considerations of practicality. The legislation must be taken to contemplate a sizeable volume of copying in departments of the Commonwealth and State Governments. The legislature may be taken to have intended provisions under which it can be known, at the time of copying and without undue delay or inconvenience, whether a copy falls into the class the subject of a declaration, or not. There is no such difficulty as between photocopying, audio-visual copying and digital copying. But the potential for delay under a more expansive concept of ‘class’ is illustrated, according to CAL, by reference to the supposed class propounded in the present application (see [2] above). CAL asks rhetorically: Would the legislature be likely to have intended that the one press of the photocopying button generating a multi-page photocopy, should give rise to obligations to two or more collecting societies, calling for categorisation according to the contents of the pages? (I note that the Explanatory Memorandum, at par 150, referred to an administratively simple procedure’ being available to governments: see [122] below.)
116 CAL’s present submission raises an important question of law. I agree with counsel for ASCCL that the answer to it is not dictated by the decision in Audio-Visual 2. It is not necessary that I answer the question in order to decide ASCCL’s application, and I refrain from doing so.
Subsection 153F(6)
117 Subsection 153F(6) was set out at [11] above. I discussed relevant provisions of ASCCL’s constitution at [26]–[48] above. It is unclear whether CAL submits that s 153F(6) denies the Tribunal power to declare ASCCL to be a collecting society because it has only one member, SQL, which acts as trustee of the Trust or whether CAL accepts that these circumstances go only to discretion. ASCCL does not dispute that it has only one member, SQL, which acts as trustee of the Trust, but submits that these facts are irrelevant to s 153F(6).
118 As noted at [26] above, CAL accepts that ASCCL’s constitution complies with s 153F(6). CAL has, however, prepared the following table indicating the shortcomings, as CAL submits they are, of the terms of the Trust, by reference to s 153F(6).
|
Copyright Act 1968 |
Australian Copyright Trust |
ASCC Ltd |
CAL |
|
s 153F(6)(a) – company limited by guarantee |
No |
Yes |
Yes |
|
s 153F(6)(b) – eligibility for membership – all works |
N/A |
N/A |
Yes – 3 |
|
s 153F(6)(c) – eligibility for membership – limited class of works |
Any person may subscribe for units in the Trust (6) – at Trustee’s discretion whether to grant. Can be classes of unit holder, at Trustee’s discretion. |
Yes – but note 90% of potential Queensland members have assigned copyright to Trust. As a matter of fact, ASCCL has only one member – Spatial Queensland Limited. |
N/A |
|
s 153F(6)(d) – must prohibit payment of dividends |
money can be paid to unit holders in proportion to holding (8(d)) |
Yes |
Yes – 72, 83(a)(xi) |
|
s 153F(6)(e) – rules that are adequate for the protection of members (i) – collection of remuneration under 183A |
Trustee’s discretion |
Yes – 64 |
Yes – 74, 83 |
|
(ii) – payment of administrative costs out of remuneration |
All outgoings 8(d) |
Yes – 65(b)(i) |
Yes – 74(b)(i)(ii) |
|
(iii) – distribution of remuneration |
Trustee’s discretion – money to be distributed in accordance with unit holdings, but Trustee can reserve money |
Yes |
Yes – 75 |
|
(iv) – holding all remuneration on trust for new members |
No |
Yes – 67 |
Yes – 76 |
|
(v) – access to records by members |
No |
Yes – 13 |
Yes – 70
|
|
s 183D(4) – report to AG |
|
|
CAL does in fact report to AG (Ex R7) |
|
s 183D(2) – accounting records |
Yes 16(a) |
Yes – 69 |
Yes – 68 |
|
s 183D(3) – accounting records |
Yes 16(a) |
Yes – 69 |
Yes – 68 |
|
s 183D(4) – auditing |
No |
Yes – 68, 69 |
Yes – 79 |
|
s 183D(6) – access for members |
No |
Yes – 70 |
Yes – 70
|
119 In my opinion, the word ‘rules’ in s 153F(6)(c) does not embrace, on the facts here, anything more than the constitution of ASCCL. The terms of the Trust do not form part of ASCCL’s rules.
120 This does not mean, however, that the facts mentioned are necessarily irrelevant to the exercise of discretion.
Discretion
121 Section 153F(6) specifies conditions which must be satisfied if the discretionary power under s 153F(4)(a) is to be enlivened. The Act does not expressly identify those considerations which are relevant to the exercise of the discretion. They must be ascertained by reference to the purpose of the conferral of the discretion. That purpose concerns;
- interests of the owners of copyright referred to in ss 183(4) and (5) and 153F(6) of the Act; and
- interests of the Commonwealth and the States.
The copyright owner has an interest in receiving, under an efficient régime, no less than equitable remuneration for the making of government copies. The Explanatory Memorandum stated (at par 149) that the amendments would:
‘streamline the system for owners of copyright in works and other subject matter to be paid when their materials are copied by Commonwealth, State and Territory governments.’
122 A government has an interest in being required to pay no more than equitable remuneration according to a régime which imposes no greater administrative burden upon it than is necessary. Indeed, the Explanatory Memorandum stated, at par 150, that the amendments would:
‘enable […] governments to avail themselves of an administratively simple procedure for calculating and making payments of equitable remuneration to copyright owners for the use of their copyright materials by the governments.’
123 I do not think ASCCL is required to establish those matters which must be established before the Tribunal can revoke the declaration of a collecting society under s 153G of the Act. Subsection 153G(5) provides that the Tribunal may only revoke the declaration of a company as a collecting society if the Tribunal is satisfied that one of the four conditions specified in that subsection is met. Two of these are of present relevance. One is that the declared collecting society ‘is not functioning adequately as the collecting society’, and the other is that the declared collecting society ‘is not acting in accordance with its rules or in the best interests of its members who own copyright in copyright material or who are agents of copyright owners’. Section 153G contemplates the possibility that after revocation of a declaration, there will be no collecting society in place. It is conceivable, however, that even if none of the four conditions specified in s 153G(5) exists, it may be appropriate for the Tribunal to declare a new collecting society and, therefore, to amend or revoke the previous declaration under s 153J of the Act. It is possible, for example, that the incumbent is ‘functioning adequately as the collecting society’ but that the applicant under s 153J will perform the function of a collecting society over part of the incumbent’s territory much better.
124 The question to be resolved is whether an applicant is likely to perform better the function of a declared collecting society than the incumbent, having regard to the interests of copyright owners and governments, but chiefly the former, since, generally speaking, it may be accepted that governments are able to look after their own interests. The following considerations persuade me to answer this question ‘No’ in the present case.
1. ASCCL not a nationally representative body
125 So far as the evidence reveals, no surveyor outside Queensland would prefer ASCCL to CAL as the relevant collecting society. The associations of surveyors in NSW and Victoria have expressed opposition to ASCCL’s application and support for CAL continuing to be the declared collecting society ‘to administer the copying of survey maps and plans under the government statutory licence’.
126 The Commonwealth and Western Australian Governments have also expressed opposition to ASCCL’s application.
127 Associations of surveyors in other States and other governments have not expressed support for either ASCCL or CAL, although they have been notified of ASCCL’s application. It may be taken that they are content to leave the matter to the Tribunal.
128 ASCCL does not have a ‘national’ character. The holders of units in the Trust of which its only member, SQL, is the trustee, are Queensland surveyors. The impetus for the formation of ASCCL is not nation-wide, but local and sectional.
129 The course of correspondence referred to [86]–[87] above, suggests that ACSQ itself saw the statutory position in Queensland as not representative of that in other jurisdictions.
130 ASIBA wrote to the Tribunal on 26 May 2003 advising that it was established in 2001:
‘as the peak body to represent the interests of all Australian businesses that participate in the Spatial Information Industry’
and
‘has provided a cornerstone for the consolidation of various State and National associations into a single and effective business association, able to engage with its members through Regional Management Groups covering every State and Territory.’
The letter from ASIBA concluded:
‘… Many of ASIBA’s members are the Surveyors whose intellectual property is the very foundation of the spatial information industry.
An effective, industry-based Collecting Society, able to act with expert knowledge of the interests of its members, is a vital participant in the spatial information value chain.
ASIBA is aware of the service currently offered by Copyright Agency Limited and of the application by Australian Spatial Copyright Collection Limited for declaration as a collecting society, but does not wish to be heard on this matter.
We look forward to being advised of your decision in due course.’
131 Counsel for ASCCL relies on the reference in ASIBA’s letter to an ‘industry-based Collecting Society, able to act with expert knowledge of the interests of its members’. But if ASIBA was satisfied that ASCCL met that description and that CAL did not, it would have said so. By the word ‘industry’ it was referring to ‘the spatial information industry’ – apparently something broader than surveyors, but certainly broader than Queensland surveyors. I do not regard ASIBA’s letter as expressing opposition to CAL remaining as the declared collecting society, provided CAL is furnished, when necessary, with the benefit of the expert knowledge of ASIBA’s members.
2. Experience and expertise
132 The expertise immediately available to ASCCL is that of its chief executive officer, Mr de Lange, and of the holders of the units in the Trust, of which ASCCL’s sole member, SQL, is the trustee. Of course, ASCCL also has access to external advice, including legal advice. In 1996 ASCCL’s sponsor, SQL, commissioned research relating to the intellectual property of surveyors. The research and the resulting reports provided to SQL referred to Queensland legislation and Queensland government departments and practices. No doubt some aspects of the reports are relevant to other jurisdictions. Parts of the research reports state fairly basic information about copyright, suitable for a beginner. Other parts are directed to approaches to valuation. No attention is given specifically to the role and practice of a declared collecting society under the Act, no doubt because it was not in contemplation at the time that the present application would be made.
133 CAL has, over a long period, accumulated expertise and experience in operating as a national collecting society. It does not have the experience of the practice of surveying possessed by Mr de Lange and others who have initiated the present application.
134 Each of ASCCL and CAL has experience and expertise of different degrees of relevance to the performance of the role of a declared collecting society for the purposes of Div 2 of Pt VII of the Act in relation to the scheduled works. I find, however, that of CAL to be the more relevant and persuasive. Moreover, CAL can easily enlist the aid of persons with experience and expertise over many years in surveying; ASCCL could not easily enlist the aid of those with experience and expertise over many years in the operation of a national collecting society.
3. The Trust and the Copyright Agreement (dated
10 August 2001) between
SQL as trustee of the Trust and the
State of Queensland, through DNR
135 ASCCL relies on the Copyright Agreement as evidence of what a specialist collecting society of surveyors can achieve, and points to what it suggests is the lacklustre performance of CAL.
136 The Copyright Agreement between SQL and the State of Queensland through DNR was entered into for a term of three years from 1 July 1999 to 30 June 2002. It provided, first, for payment of a lump sum of $150,000 within 30 days of execution of the Agreement, which SQL acknowledged to be all the fees payable for all copying of survey plans by the State on or before 30 June 1999. Secondly, it provided for payment in respect of each year of the three year term of:
- $25,000 plus GST for copying by DNR in accordance with Div 2 of Pt VII of the Act; and
- a DCDB copying fee of 7.5 percent of ‘Gross Revenue’ plus GST (‘Gross Revenue’ was defined to mean ‘all monies received directly or indirectly by [DNR] for the provision of information from the DCDB’, but some forms of revenue were excluded, notably, ‘copying for the services of the Crown’ and ‘information which [was] provided for no monetary consideration’).
The Copyright Agreement defined ‘DCDB’ (Digital Cadastral Data Base) to mean:
‘the digital database of cadastral boundaries and additional attribute information in Queensland established, owned and operated by NR&M [DNR] that was initially created by digitising cadastral maps and has been updated by the addition of Bearing and Distance Datasets from individual new survey plans upon registration in the Land Registers.’
137 Importantly, by cl 4.2 of the Copyright Agreement, the parties acknowledged that under that Agreement, DNR was not paying:
‘any licence fee for the reproduction of Survey Plans from the Land Registers for the purpose of conducting the Land Registers, and undertaking the activities and functions of registration.’
This clause did not reserve a right for SQL to claim such licence fees except for reproductions of the kind mentioned made on or after the termination of the Copyright Agreement. Indeed, the final two paragraphs of cl 4.2 were as follows:
‘(d) for the purposes of clarification, this Agreement operates as a waiver of the right to claim licence fees for reproductions of the kind referred to under clause 4.2(a) made during the Term of this Agreement; and
(e) nothing in this Agreement prejudices the right of NR&M or the State to dispute claims made by or on behalf of surveyors as to the subsistence and ownership of copyright in Survey Plans or the payment of licence fees for the reproduction of Survey Plans.’
SQL gave up the opportunity to have the issues of the State’s implied licence contention and the ‘value’ of the copyright in each survey plan, matters of importance to all Australian surveyors, resolved.
138 The significance of the Trust and Copyright Agreement is to be understood in the context of the following background.
139 According to Mr de Lange, the Queensland Titles Office provides copies of the surveyors’ plans lodged with it to DNR, and DNR uses them to create its DCDB. In cross examination Mr de Lange explained that the DCDB is ‘a data base of all the property boundaries over the whole of Queensland … [and is] a data base of dimensions rather than a data base of plans’. Mr de Lange explained:
‘So in this data base there are just lots of lines which have dimensions and each lot isn’t identified and there is other attribute information attached to those lots in that data base.’
Mr de Lange testified that ‘copies’ made from the DCDB are sold to the public, and that it is on those sales that SQL is entitled to the fee of 7.5 percent of gross revenue. He agreed that the two exclusions mentioned earlier meant that SQL would not receive remuneration on ‘copying for other government departments’ or on copies provided to such bodies as the Brisbane City Council or the Gold Coast City Council, which supply information to DNR pursuant to a ‘contra’ arrangement with DNR.
140 The reproduction of survey plans from the Land Registers, including the Titles Office, can also be effected electronically, as well as in paper form across the counter. Mr de Lange was cross-examined in relation to this exclusion as follows:
‘For example, if a Brisbane solicitor wants to search a property for the purposes of a real estate transaction they can do that on line, is that right? --- They can.
That doesn’t go through the digital cadastral database, is that right? --- No, it doesn’t. It comes direct as an image from the store of survey plans which is an electronic store.
That is a digital use by the DNR, is that right? --- Yes.
How does the deal that you've done with the DNR cover that digital use? --- The deal that we’ve done with the DNR so far excludes that digital use. They claim implied licence for that use and the selling of copies across the title’s office counter either electronically or in paper form.’
This ‘implied licence’ was said to arise from DNR’s statutory role.
141 CAL submits that SQL concluded a ‘bad deal’ with DNR, acquiescing in non-payment for the copying of surveyors’ plans. According to CAL, ASCCL ‘gave away as being covered by an implied licence, the most immediately significant digital use of surveyors plans: digital use by the Queensland Land Titles Office’, and the two exclusions from the definition of ‘Gross Revenue’ mentioned above. According to CAL, SQL did so because it wished to obtain and exploit novel commercial opportunities for the unitholders in the Trust. Exploitation of such opportunities, for the benefit only of those who assign copyright to it, is not part of the function of a declared collecting society.
142 SQL’s approach to the negotiations with DNR differed from that of CAL and ACSA. CAL and ACSA were insistent that the State pay a rate to be agreed for all copying of surveyors’ plans – an aspect which would yield an important commercial precedent nationally, and which would benefit all surveyors throughout Australia whose plans were copied, not only those Queensland surveyors who were the holders of units in the Trust. SQL showed no interest at all in pressing the position taken by CAL and ACSA. Again, asked what SQL ‘had in mind’ in agreeing to the exclusion of ‘copying for the service of the Crown’, Mr de Lange said:
‘Well, it was just part of the negotiation that they [DNR] wanted to exclude that.’
143 It was suggested to Mr de Lange in cross-examination that the purpose of the Trust structure and the assignment to SQL with a licence back to the unitholder, was to facilitate the undertaking of novel business activities. He agreed. The following passages occurred in his cross-examination:
‘One of the reasons that the Queensland association set up a structure whereby its members assigned their copyrights was, do you agree, that if they did assign their copyrights to a central trust then it would be able efficiently to undertake activities like the blue tin activity? --- That was one of the purposes for having it as a trust structure, yes.’
‘Do you agree that one of the reasons you were anxious to do the deal you eventually did with the Queensland Department of Natural Resources was that you thought that in doing so you would be able to lay the groundwork for other activities for the benefit of surveyors, such as the things that SITE was going to do, or hoping to do? --- Well, the bigger picture and other opportunities would have been in the minds of the negotiators, yes.
When you say would have been, you know that it was in the minds of the negotiators, wasn’t it? --- Yes, it was.’
‘Would you agree with this, Mr de Lange. We can go to them in more detail and I think the documents show them. When you and your colleagues entered into the deal with the Queensland department you were aware that CAL and sister associations in other states had some reservations about the merits of the deal? --- Yes.’
‘One of the reasons you thought it was beneficial to enter into the Queensland deal was that it opened the door or held open the door for other commercial opportunities such as those that SITE was going to pursue? --- Yes.’
144 What was the nature of the novel business opportunity that SQL wished to secure for SITE to pursue? Mr de Lange gave some indication of this in the passage from his cross-examination set out at [143] above. At least one such opportunity was the ‘privatisation’ or ‘outsourcing’ of the management of the DCDB. CAL submits that the Copyright Agreement between SQL and the State of Queensland was treated by SQL as a ‘loss leader’ designed to pave the way for lucrative arrangements of that kind. In my opinion, there is substance in this characterisation.
145 SQL points out, in reply, that CAL itself has engaged in ‘trade-offs’ as between different provisions of arrangement into which it has entered. SQL draws attention to an agreement between CAL and the Commonwealth of May 2003. Recital G of that Agreement was as follows:
‘The amount to be paid for Digital Copying of Copyright Material (excluding Newspaper Clips) in the first period as set out in the Agreement is a nominal amount agreed between the Parties for the purpose of enabling Remuneration to be paid for Digital Copying and Communication of Copyright Material while data is collected and negotiations pursued in relation to future terms for Digital Copying and Communication.’
146 There is, however, a difference between such a provision and the Copyright Agreement. In entering into the latter, SQL did not contract for the benefit of all copyright owners without discrimination. It did so for the benefit only of those who had become unitholders in the Trust. CAL contracted with the Commonwealth for the benefit of all copyright owners.
147 In my opinion, there is a consideration arising from the discussion above which tells, to some extent, against ASCCL being a declared collecting society. There is a real danger of a conflict of duties. As a statutory collecting society, ASCCL would be obliged to act singlemindedly in the ‘equitable remuneration interests’ of all owners of copyright in the scheduled works throughout the Commonwealth, including, without discrimination, those who have not assigned copyright to SQL in order to become holders of units in the Trust. But those persons who have caused ASCCL to be formed, and the present application to be made, have had as their objective the obtaining from the Queensland Government, and exploitation, of new profit-making opportunities, for the benefit of the assignor-unitholders. Those persons are the persons in control of SQL, which, as trustee of the Trust, is the only member of ASCCL. What is ASCCL to do if, when negotiating with the Commonwealth and State governments, it is forced to choose between a high level of equitable remuneration for all owners of copyright in scheduled works, on the one hand, and a lucrative business opportunity for the unitholders on the other? The facts of the present case suggest that the possibility of such a conflict is not fanciful.
148 ASCCL submits:
- that there will be two distribution schemes, one relating to equitable remuneration payable to it under s 183A, and the other to profits made by SQL as trustee of the Trust from independent commercial ventures; and
- that the conduct of those who have represented SQL and ACSQ to date should not tell against the present application because ASCCL is a separate, recently incorporated legal entity.
149 I do not find these submissions persuasive for the following reasons:
- the duality of distribution schemes confirms, rather than overcomes, the potential conflict problem; and
- ASCCL, which had a life of only eight days before it commenced this proceeding, has been pleased to acknowledge its connection with SQL and ASCQ for some purposes, such as, the possession of experience and expertise in surveying practice and the commissioning of research; in any event, on a discretionary question such as that before me, I am entitled to regard ASCCL’s antecedents as some indication of the likely course of events in the future.
4. Subsection 153F(6) again – discretion
150 I discussed the question whether ASCCL’s constitution satisfied the condition specified in s 153F(6) (set out at [11] above) at [26]–[48] above. On the assumption that it does, I now turn to consider whether ASCCL and the Trust structure satisfy what I understand to be the policy objectives underlying those conditions.
151 At present the only member of ASCCL is SQL, which qualifies for membership as a ‘Copyright Owner’ by reason of the assignments to it (as trustee of the Trust) of copyright by applicants for units in the Trust.
152 If ASCCL’s present application were to succeed, it would be the declared collecting society in respect of the scheduled works and would represent many copyright owners throughout Australia, including SQL, the owner by assignment, of the copyright in many Queensland-based scheduled works.
153 Clause 36 of ASCCL’s constitution provides as follows:
‘The Board shall consist of four Directors nominated by the Australian Copyright Trust and a minimum of two Directors who have been elected by the Members of the Company.’
Clause 37 provides that six persons named in that clause are the first directors.
154 Oddly, cl 36 does not provide for a maximum number of directors. Nonetheless, for the immediate future, control of the affairs of ASCCL is likely to rest with those who control SQL.
155 If many Copyright Owners (as defined in the constitution – see [28] above) from throughout Australia were to apply to become members of ASCCL, the directors would be obliged by cl 11 of the constitution to admit them as members. It may be that persons from other States would be elected as directors; that control of ASCCL would pass from SQL; and that ASCCL would become nationally representative.
156 Apparently, on present indications, those then acquiring control of ASCCL would have no interest in obtaining and exploiting novel business opportunities, although SQL, as trustee of the Trust, might still attempt to do so in Queensland. One can only speculate as to the conflicts between that State , SQL and ASCCL which might then arise. The unitholders, although they had assigned their copyright to SQL, would remain ‘Copyright Owners’ as defined in ASCCL’s constitution, because they would be the licensees of rights in Copyright Material. They are eligible to become members at present, and might choose to do so in the future if the opportunity to obtain and exploit novel business opportunities were seen to be disappearing.
157 If ASCCL were to be a declared collecting society in relation to the scheduled works, there is a real possibility of conflicting factions developing in the various ways mentioned between those Queensland surveyors who have supported SQL in its attempt to obtain and exploit novel business opportunities, and all other surveyors throughout Australia who would, on present indications, insist that ASCCL devote itself singlemindedly to obtaining the highest level of remuneration available for government copying of their works. This consideration tells against ASCCL’s present application.
5. The attack on CAL
158 CAL entered into an agreement with the NSW State Government on 19 September 1994 and supplementary agreements with that State on 22 May 1996 and 19 December 1997 and, since its declaration as a collecting society for Div 2 of Pt VII purposes, on 6 October 2000. They were in respect of the reproduction of ‘works’ generally, and therefore, ‘artistic works’, and therefore, surveyors’ plans. Although surveyors’ plans are included, there is no provision for separate identification of them. Negotiations are ongoing between CAL and NSW (in conjunction with the other States and the Territories) in respect of the period 1 July to 30 June 2005. NSW has paid remuneration to CAL for the period down to 30 June 2002. NSW (and the other States and Territories) participated in a 2002/2003 survey of government copying conducted by AC Nielsen to assist CAL in the distribution of compensation to copyright owners.
159 In 1996, before CAL became a declared collecting society, CAL and the Commonwealth entered into a ‘voluntary agreement’ in respect of Commonwealth government copying of CAL’s members’ works. There were subsequent agreements, the last of which expired in June 2001. In about 2000, CAL and the Commonwealth entered into negotiations in relation to the equitable remuneration to be paid to CAL as the declared collecting society. The negotiations lasted for some three years, and a new agreement was executed in May 2003, covering a period commencing in July 2001.
160 The Commonwealth has made a written submission in opposition to ASCCL’s application. The submission describes a survey exercise that is undertaken in the relevant Commonwealth departments and agencies, over a ten-week period, of all copies made and faxes sent. Information recorded includes ‘the pages copied, the name of the publication, the author, the publisher and the number of copies’ Copies are classified into one of six categories: Newspaper; Book; Journal; Artistic Work; Other; and Exempt. Plans, maps and surveyors’ works are not separately identified; however, the definition of ‘Artistic Works’ in the Agreement of May 2003 includes ‘maps’. The sampling body (AC Nielsen) supplies the results and its analysis of them to CAL and the Commonwealth. There have been four surveys since 1996. The Commonwealth Attorney-General’s Department has regularly employed a full-time officer to ‘manage the survey process’. There is ‘a considerable administrative burden in establishing the survey parameters, liaison, training and management of the survey’. Obviously, there would be an increase in that burden if a further collecting society were to be declared in respect of government copies of a more specific range of works.
161 Surveys have also been carried out, of copying by the Governments of States and Territories. Again, there would be some increase in the associated burden if ASCCL’s present application were to succeed.
162 Moreover, quite apart from the surveys mentioned, it is obvious that it is more convenient for Commonwealth, State and Territory Governments to have to deal with one collecting society rather than with more than one. I do not, however, on the evidence before me, give this consideration great weight.
163 Of course, the convenience and wishes of governments can be overemphasised: governments can be expected to prefer a supine, quiescent collecting society to one which is aggressive in its assertion of copyright owners’ rights.
164 ASCCL submits that CAL has been ‘perfunctory’ in enforcing the statutory right of surveyors to equitable remuneration. ASCCL relies on the following evidence:
165 The third supplemental agreement between CAL and NSW was made on 6 October 2000 – some two years after CAL entered into correspondence with NSW in relation to copyright in survey plans. On 15 October 1998, CAL opened negotiation by writing to the NSW Attorney-General a letter commencing: ‘I write to you concerning a claim of copyright in the plans of survey’.
166 In or about March 2002, CAL and representatives of the States and Territories commenced negotiation in relation to copies made after 30 June 2000 – the date of expiry of the period the subject of the last agreement. On or about 5 April 2002, a draft agreement was prepared which did not distinguish between survey maps and plans and other artistic works. For artistic works the copy page rate was 15 cents per page.
167 By an email dated 14 August 2002, CAL advised the responsible person in the SA Attorney’s Department, who was apparently representing all States and Territories at the time for the purpose, that the draft agreement would be amended to note that survey maps and plans were not included. By a reply email the following day however, that person advised that she did not expect that the States and Territories would agree to the amendment and that there was ‘no justification for defining artistic works other than as defined in the Copyright Act’.
168 On 16 May 2003 there was a meeting of representatives of State and Territory governments in relation to the draft agreement. Notes of the discussion at the meeting were in evidence. According to the notes, the participants discussed ‘maps and plans’. The notes recorded the view that they had always been covered in previous agreements under s 183. It was recorded that States and Territories had never previously paid specially for survey maps and plans. The notes recorded:
‘Provide copies of S & T [States and Territories] correspondence re not being in Agreement (How will this override Agreement). S & T never paid for survey maps and plans.’
169 On 26 May 2003 CAL emailed representatives of the States and Territories as follows:
‘It seems clear from discussions that you all hold a view that this particular category of material, i.e. survey maps and plans, has been included as Works under the previous signed agreements/ deeds of variation. Following on from this view, the issue of, and discharge of, “past liability” for this category of material does not arise in your view because the signed agreements are “inclusive of survey maps and plans”.
On a number of occasions, CAL has expressed its views on this matter. Apart from other matters discussed with you, at no time has there been a separate page rate for Artistic Works nor has there been any data captured under which such allocation could be made to surveyors. If a technical error was made by CAL that has led the current State representatives towards a view that survey maps and plans are and have always been included as works in the signed agreements, then CAL does not wish to repeat that error by accepting $8.22 (or $8.22 plus CPI) as there is no current provision for the identification of this type of work, nor a means of allocation to surveyors.
To move forward on this issue and ensure that these works are defined and captured in the new agreement, there will be set a separate rate for Artistic works and a methodology designed for the capture of this category of material. The new agreement for each State and Territory will run from whatever was the date of the last date of the existing signed agreement with that State or Territory.
As agreed at our recent meeting, I now forward the one page summary outlining the way forward in respect of dealing with survey maps and plans for inclusion as a Schedule to the current draft agreement.’
170 In September 2003, CAL prepared a further draft agreement. Clause 7A of that draft provided:
‘7A Surveyors plans – optional clauses
7A.1 The parties recognize their differing views in relation to the use made of Surveyors Plans by the State and whether Surveyors Plans have been covered as Artistic Works by the present or previous agreements for the purposes of Division 2 of Part VII of the Act.
7A.2 CAL has offered, and the State has agreed to accept, that surveyors Plans will be or be deemed to be included in this Agreement and Equitable Remuneration for Copying of Surveyors Plans as from the date of commencement of this Agreement will be determined in accordance with subclause 7A.8.
7A.3 CAL agrees not to bring any action, claim, demand or proceeding, nor to make any application to any court, nor to seek any further order in any current proceedings, nor directly or indirectly encourage any such action, claim, demand, proceeding or application by any third person against the State, arising from or in connection with Copying of Surveyors Plans during the term of this Agreement.
7A.4 The provisions of clause 7A.3 shall not prevent CAL from assisting any member of CAL who brings any action, claim, demand, or proceeding or makes any application contemplated in that clause by providing them with information if, and only to the extent that, CAL is obliged to do so in terms of its constitution or agreements with members.
7A.5 Without limiting clauses 2.3, 2.3A or 2.3B, the State makes no admission whatsoever as to subsistence of copyright in Surveyors Plans, ownership of copyright in Surveyors Plans or liability for any such use.
7A.6 For the avoidance of doubt, Surveyors Plans will be treated as a separate category of Works specifically governed by this clause, and will not be covered by the Survey Design, Survey Protocol or Survey Obligations. The provisions of this clause will prevail over the remainder of this Agreement in their application to Surveyors Plans to the extent of any inconsistency.
7A.7 The State agrees to provide to CAL the following information for each Year of the Agreement for the purposes of determination of Equitable Remuneration for Copying of Surveyors Plans:
(a) the unique registered number of each Surveyors Plan which is registered by the State’s lands titles registration office; and
(b) the number of times each surveyors Plan is photocopied by that land titles registration office for the services of the State (that is, including for use by that office and for provision to State departments and instrumentalities (including the Office of the Valuer General the Office of State Revenue and any other body), to local governments and to utilities) (“Distribution Number”).
7A.8 Equitable Remuneration for Copying of Surveyors Plans for each Year of the Agreement is to be determined using the following formula: [there followed a formula].’
171 ASCCL relies also on the record of CAL’s negotiations with NSW, in particular.
172 In late 1997, CAL commenced discussions with NSW about copyright in surveyors’ works. In a letter dated 19 August 1998 to the NSW Attorney-General’s Department, CAL set out its claims in relation to the reproduction of plans by the NSW Government. The letter did not specify any particular money amounts that were sought.
173 On 8 March 2000, CAL wrote to the NSW Attorney-General stating:
‘CAL and its members have patiently waited for the government’s response and after almost two years are not prepared to wait any longer.’
The letter did not submit a concrete proposal, but demanded to know whether NSW was willing to negotiate.
174 On 3 May 2000 the NSW Attorney-General informed CAL that it should direct its inquiries to the Department of Information, Technology and Management (‘DITM’).
175 On 6 June 2000 a meeting was held between Mr Kyrios of CAL and Ms King of DITM. Mr Kyrios outlined issues calling for ‘consideration and advice by DITM’. Ms King said it would be difficult ‘to finalise timeframes’ because a reorganisation of DITM was taking place.
176 On 23 November 2000, Mr Kyrios sent a reminder email to Ms King stating:
‘Julie, just a short note to say we are not going anywhere.
I can understand “restructure” problems and the time they soak up but if an organisation the size of DITM cannot address what potentially could be a major problem for them then something is missing. I can now only proceed on the facts before me – negotiation is a mere word not an intent or action. Do you wish me to keep you up to date as we proceed down the legal path?’
177 There followed a meeting on 12 December 2000, this time between Mr Kyrios and several representatives of DITM. Mr Kyrios explained the basis of CAL’s claim. Mr Kyrios was requested to specify a dollar amount. He said he would be happy to do so ‘when LPI [Land and Property Information New South Wales] indicates its seriousness to negotiate and on what basis’. It was agreed that Mr Kyrios would provide a ‘position paper’.
178 On 11 January 2001 Mr Kyrios provided the position paper. There was no immediate response from DITM. On 30 March 2001, Mr Kyrios informed Ms King that CAL would instruct its lawyers. The same day, Ms King replied that the General Manager of LPI was prepared to convene a meeting with CAL. Mr Kyrios replied that it was up to LPI to act ‘in a timely and decisive way to take advantage of a negotiated solution’ and that if LPI so acted, he (Mr Kyrios) would ‘put CAL’s lawyers on ice’.
179 On 10 May 2001 CAL’s solicitors wrote a letter of demand. On 18 May 2001 the Director-General of DITM responded, advising that the solicitors’ letter had been referred on for legal advice. The DITM letter also stated that CAL’s solicitors had access to DITM’s database. (In fact, NSW has never refused CAL access to its DCDB, and a demonstration of the operation of it has been given to CAL’s representatives.)
180 On 15 August 2002 the issue of surveyors’ works was taken up again, in the context of the negotiation of a general agreement.
181 CAL’s response to the accusation of ‘perfunctoriness’ in negotiation is that in the period 1998–2000, it was focussing its efforts on the negotiations with DNR, at the request and with the co-operation and assistance of ACSA. CAL submits that NSW deflected CAL’s attempts to negotiate with it by directing CAL to negotiate with DITM after SQL had concluded its deal with DNR in Queensland.
182 CAL also relies on Mr Fraser’s evidence that in CAL’s experience, it is better to take an ‘incremental’ approach to the negotiation process, rather than to grasp an early offer. Mr Fraser stated of the Third Supplemental Agreement with NSW:
‘We believe that it did preserve surveyors' interests. It was designed to do that. There were a series of agreements with the state starting from the voluntary agreements on behalf of authorising members, and then we continued in a series of interim agreements subsequently to get payments under section 183 after we were declared, but they were still in the terms of the original agreements. That it [sic] a typical approach that the Copyright Agency has taken in making agreements with our licensees, with our clients, so that we agree on what we can and we get payment on what we can and we continue to explore and negotiate and if necessary, unfortunately, then to refer to the tribunal ultimately in the failure of agreement on those areas that we don't agree. So we take this incremental approach, a step by step approach, a building approach, in just the same way our agreements with the universities, the schools, technical and further education have expanded the scope and value of the licence, agreeing where we could and setting aside for ongoing negotiations the areas remaining.’
Later, Mr Fraser said:
‘ … we acknowledge the need to in developing our licensing and our relationship with the licensee to sometimes build and to take incremental step by step approach and agree where we can, get payment where we can, and leave other matters aside and get those payments later without ever giving away the value or the right to obtain those payments and what I meant by my answer was that we would never accept less than we thought we could get in that approach to equitable remuneration at each step of the way.’
Finally, the following exchange occurred:
‘So that means, does it not, that CAL might take a long term view in terms of what it agrees in a particular time and place, it should be the equitable remuneration? --- It does but it doesn’t mean that in taking those steps we would accept less than what in principle or give away an area than what we thought in principle was an important precedent or an important value to maintain. So while we do indeed take a long term approach and that's clear in these matters it is a principled approach. We don’t accept less than the value of each step and we maintain those principles and reserve our position on the value of the forthcoming steps.’
183 The course of negotiation may suggest, as a matter of first impression, that CAL has been to some extent slow and half-hearted. I accept, however, that it is very difficult, if not impossible, to secure expeditious agreement of all State and Territory governments to pay, at rates and according to an agreed sampling system, for something for which they have not paid (at least as a separate category) in the past. I also accept Mr Fraser’s evidence, based on his years of experience, that an incremental approach to negotiation is ordinarily a desirable one.
184 It may be that CAL should have brought matters to a head earlier. It is always possible, with the benefit of hindsight, to identify in a course of events, steps that should have been taken earlier than they were. I do not accept, however, that CAL’s performance can be described as ‘perfunctory’ or as pointing to a conclusion that it should cease, in favour of ASCCL, to be the declared collecting society in relation to the scheduled works. I certainly do not think that SQL’s having concluded its deal with the State of Queensland demonstrates that ASCCL is better equipped than CAL to fulfil the role of representing the copyright interests of all surveyors throughout Australia. The Queensland arrangement was not one between a declared collecting society representing all surveyor-owners of copyright and directed to achieving equitable remuneration simply for government copying of their works. What SQL did and what a declared collecting society is required to do, are so different that the former provides little assistance in my assessment of CAL’s performance.
Conclusion on discretion
185 For all the above reasons, ASCCL’s application should be rejected.
CONCLUSION
186 ASCCL’s application is rejected.
|
I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Decision herein of the Copyright Tribunal constituted by Lindgren P. |
Associate:
Dated: 5 May 2004
Counsel for the applicant: Mr N Manousaridis
Solicitor for the applicant: Praeger Batt
Counsel for the respondent: Mr D K Catterns QC
Solicitor for the respondent: Banki Haddock Fiora
Dates of hearing: 18, 19 December 2003
16 February 2004
Date of Decision: 5 May 2004