COPYRIGHT TRIBUNAL OF AUSTRALIA
Copyright Agency Limited v Queensland Department of Education [2006] ACopyT 1
COPYRIGHT TRIBUNAL – electronic use notices – interim electronic use system – application for interim order to amend system
Copyright Act 1968 (Cth) Pt VB, ss 160, 161
COPYRIGHT AGENCY LIMITED v QUEENSLAND DEPARTMENT OF EDUCATION and OTHERS (see attached schedule)
CT 1 of 2005
FINKELSTEIN DP, A BOWNE SC, DR R SMITH
7 APRIL 2006
MELBOURNE (heard in Sydney)
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IN THE COPYRIGHT TRIBUNAL OF AUSTRALIA |
CT 1 of 2005 |
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BETWEEN: |
COPYRIGHT AGENCY LIMITED Applicant
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AND: |
QUEENSLAND DEPARTMENT OF EDUCATION & ORS Respondents
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TRIBUNAL: |
FINKELSTEIN DP, A BOWNE SC, DR R SMITH |
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DATE: |
7 APRIL 2006 |
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PLACE: |
MELBOURNE (heard in Sydney) |
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THE TRIBUNAL ORDERS THAT:
1. The application for an interim order to vary the interim electronic use system be refused.
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IN THE COPYRIGHT TRIBUNAL OF AUSTRALIA |
CT 1 of 2005 |
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BETWEEN: |
COPYRIGHT AGENCY LIMITED Applicant
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AND: |
QUEENSLAND DEPARTMENT OF EDUCATION & ORS Respondents
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TRIBUNAL: |
FINKELSTEIN DP, A BOWNE SC, DR R SMITH |
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DATE: |
7 APRIL 2006 |
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PLACE: |
MELBOURNE (heard in Sydney) |
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REASONS FOR DECISION
1 The respondents have given notices which require equitable remuneration for the reproduction and communication by them (or by the schools they represent) of works in electronic form to be assessed on the basis of an electronic use system. The quantum of the equitable remuneration will be determined by agreement or, failing agreement, by the Tribunal. To this point there has been no agreement on quantum and it will take some time before the parties are in a position to proceed before the Tribunal.
2 So that the remuneration is capable of being assessed from the giving of the electronic use notices, the parties have introduced an interim electronic use system to determine the number of reproductions and communications of works that are taking place in electronic form. The system incorporates a survey. The survey comprises a series of questions to be answered by school staff. The parties are in dispute regarding whether an additional question should be added to the survey. They have asked the Tribunal to resolve that dispute on an interim basis under s 160 of the Copyright Act 1968 (Cth). By that section the Tribunal has power to make an interim order which is to have effect until the final decision of the Tribunal on the application. It is not in dispute that s 160 authorises the Tribunal to make an order that will resolve the present dispute.
3 It is best to begin with a brief description of the dispute. The electronic use system requires school staff to produce a “usage record”. The information in the usage record includes answers to a series of questions which are to be provided at the time of or shortly after a relevant reproduction or communication has taken place. The relevant questions are:
“How did you use the material?
(i) scan or digitally photographs;
(ii) download or save;
(iii) copy to CD, DVD, disk;
(iv) print;
(v) network/intranet;
(vi) email;
(vii) display or project; or
(viii) tell students to print/copy/save.”
The applicant collecting society wishes to have added an additional question namely “(ix) tell students to view”. The respondents are adamant that the question should not be added.
4 It should be noted, if it is not otherwise apparent, that the applicant is not seeking from the Tribunal a determination that the question (ix) should be included in whatever is the final form of the electronic use system. All that is sought is an order that it be added for the time being.
5 The dispute has come about in the following way. After the introduction of the interim electronic use system the applicant discovered that teachers in class or in their teaching material were referring students to material on CD-ROMs, school intranets and the internet. There is some evidence that not only do students view the material to which they have been referred but often they also make a copy of that material on their own medium so as to have it available for later review or study. The applicant contends that this conduct by students may result in a reproduction or communication of copyright material. It also contends that the respondents are liable to pay equitable remuneration for the reproduction of or communication by the student of copyright material.
6 It is fair to say that the applicant’s contentions are hotly contested. The resolution of the dispute will require a close examination of the facts as well as the construction of a number of provisions in the Copyright Act, in particular ss 10 (the definition of “communicate” and “broadcast” under the Act); ss 31(1)(a)(iv), 31(1)(b)(iii) (the right communicate to the public); s 22(6) (defining the person who makes a communication); ss 39B and 112E (communication by use of certain facilities); and ss 43A, 43B, 111A and 111B (defences where temporary copies are made in the course of communication or as part of a technical process of use). Needless to say, and in any event it is apparent from the parties’ submissions, the legal issues involved do not lend themselves to an easy resolution. At this point in time the parties have not requested the Tribunal to decide these issues. Presently the parties are considering whether it may be preferable for the Tribunal to refer the issues to the Federal Court in a case stated under s 161. If this course is adopted, it will be some time before the parties will have a decision. Nevertheless it would be inappropriate in the meantime for the Tribunal to express any views on the issues.
7 The principal reason the applicant seeks to have question (ix) introduced now is because of the possibility that the respondents may be required to pay equitable remuneration for the reproductions or communications by students. The applicant says that if question (ix) is added to the survey now then there will be some proper basis for later determining the volume of student reproductions. The applicant suggests that without that information there will be no material on which to base a finding as to the appropriate level of equitable remuneration which might be payable. It also says that in the absence of the information that would be obtained from question (ix) it would be difficult for it to distribute to copyright owners the remuneration it recovers.
8 Notwithstanding the prima facie attraction of the applicant’s submissions and also recognising that at some point it is likely that further questions will be added, the Tribunal declines at present to make any changes to the survey. The reasons can be briefly stated.
9 First, having heard from Mr Alexander, the person who designed the electronic use system and who proposed the additional question, it is tolerably clear that, if question (ix) is added, it will be of little use in achieving the applicant’s two objectives. Although it may be true that some information may be better than no information at all, Mr Alexander said that any responses to question (ix) would only provide a “basic measure” of reproduction or communication and, sooner or later, the question would need to be refined and further questions devised. For example, a response to question (ix) will not provide information which identifies the particular activity that has taken place and it is the nature of that activity that will determinate whether a reproduction or communication of copyright material has occurred.
10 Second, it is inevitable that once the legal dispute about students’ activities has been resolved, there will need to be a revision of the survey questions. We think that the less revisions there are the better, from everyone’s perspective.
11 Finally, the applicant will not be unduly prejudiced by any delay. Indeed, Mr Alexander suggested that if the Tribunal were to defer introducing any additional questions, it is the respondents that might be prejudiced. Obviously they are prepared to run this risk, so that possible prejudice is of no concern to the Tribunal.
12 It is inevitable that the form of the survey will need to be revisited even if there is no remuneration payable as a consequence of a direction “tell[ing] students to view”. As will be apparent, we think that any consideration of revisions to the survey should await the resolution of the legal issues.
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I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Decision herein of the Copyright Tribunal constituted by Finkelstein DP, A Bowne SC and Dr R Smith. |
Associate to the Deputy President:
Dated: 7 April 2006
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Counsel for the Applicants: |
D K Catterns QC |
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Solicitors for the Applicants: |
Banki Haddock Fiora |
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Counsel for the Respondents: |
R Cobden SC |
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Solicitors for the Respondents: |
Minter Ellison |
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Date of Hearing: |
6, 7 & 8 February 2006 |
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Date of Decision: |
7 April 2006 |
CT 1 of 2005
Schedule of Respondents
Queensland Department of Education;
New South Wales Department of School Education;
ACT Department of Education & Training and Children’s, Youth and Family Services Bureau;
State of Victoria of the Officers of the Department of Education, Victoria;
Crown in Right of the State of Tasmania for and on behalf of the Department of Education, Community & Cultural Development;
The Minister for Education & Children’s Services (South Australia);
NT Department of Education;
Education Department of Western Australia;
Catholic Education Commission, New South Wales as the authorised agent of the Catholic Bishops of NSW who constitute the Roman Catholic Province of Sydney and are Incorporated as the Trustees of the Province of Sydney pursuant to the NSW Roman Catholic Church Communities Lands Act 1942 (NSW);
Catholic Education Commission of Victoria;
Catholic Education Office Archdiocese of Canberra & Goulburn;
Trustees of the Property of the Roman Catholic Church in Tasmania;
South Australian Commission for Catholic Schools Incorporated;
Catholic Education Office of Western Australia;
Catholic Education Office, Darwin;
Brisbane Catholic Education;
Toowoomba Catholic Education Office;
Catholic Education Office Diocese of Rockhampton;
Catholic Education Office – Townsville;
Catholic Education Office – Cairns;
Association of Independent Schools of Queensland, Inc;
Association of Independent Schools of New South Wales Limited;
Association of Independent Schools of ACT Incorporated;
Association of Independent Schools of Victoria Incorporated;
Association of Independent Schools of Tasmania;
South Australian Independent Schools Board Incorporated;
Association of Independent Schools of the Northern Territory;
Association of Independent Schools of Western Australia (Inc);
Australasian Conference Association Limited Trustee for Seventh-Day Adventist Schools;
Christian Community Schools Limited; and
Christian Parent Controlled Schools Limited