Copyright Tribunal of Australia

Copyright Agency Limited v University of Adelaide (Advance Ruling) [2020] ACopyT 3

COMMONWEALTH OF AUSTRALIA

COPYRIGHT ACT 1968

THE TRIBUNAL ORDERS THAT:

1.    The Respondents’ application for an advance ruling be dismissed.

2.    The parties confer and propose to the Tribunal an agreed order so as to facilitate the putting on of evidence by the University of Sydney, UNSW and UTS in response to Ms Haddock’s, Ms Causley-Todd’s and Mr Regattieri’s affidavits within seven days hereof.

REASONS FOR DETERMINATION

PERRAM J (DEPUTY PRESIDENT):

1    Recently, the Applicant served three affidavits which it says are in reply. The affidavits are:

(1)    Ms Haddock of 14 July 2020;

(2)    Mr Regattieri of 9 July 2020; and

(3)    Ms Causley-Todd of 9 July 2020.

2    The Respondents submit (a) that the affidavits are not in reply and should not be received. It seeks a ruling in advance of the hearing to this effect. The hearing commences on Monday 7 September 2020 and is due to run for three weeks. They then submit (b) that the affidavits should not be received because they will be of no assistance to the Tribunal in the resolution of the issues. Next they submit (c) that the receipt of the affidavits will be prejudicial because their form is such that they cannot be properly answered. Tacking back in the other direction the Respondents submit (d) that if the affidavits are received then the Respondents must be given an opportunity to respond to them. Finally, the Respondents submit (e) that the affidavits should not be permitted because the deponents are the Applicant’s lawyers. Permitting the Applicant’s lawyers to be cross-examined may put them in the invidious position of having to give answers contrary to their client’s interests. These issues arose in the context of the Applicant’s application for the suppression of certain exhibits to the affidavits. Such an order is no longer sought by the Applicant.

3    This is not a Court case and the rules of evidence and procedure do not apply. The Tribunal’s principal obligation in the present context is to ensure that both parties are given procedural fairness. Viewed that way, I will deal with propositions (a), (b) and (c) together by asking whether it is procedurally fair for the Applicant to rely on the affidavits and, if it is, does procedural fairness require the Respondents to be given a chance to respond (proposition (d)). I reject proposition (e). Maybe that problem will arise, maybe it will not. Witnesses in various proceedings are sometimes put in tricky situations where the penalty for perjury interacts uncomfortably with their other duties or obligations. There is nothing unusual about it. No doubt, most solicitors involved in contentious business try to keep themselves out of the witness box on substantive issues, but that is a counsel of wisdom not a rule of law.

4    Returning then to the three affidavits, one must first ask what they are to prove. There is an issue between the Applicant and the Respondents about the extent to which students are provided by the Respondents with material by email and other platforms (in addition to learning management systems). The Applicant wishes to show that this does actually happen and therefore to put itself in a better position when it comes to assessing how much the Respondents are using the material and therefore, potentially, the appropriate fee. In its case in chief, it put on an affidavit from its chief executive, Mr Suckling, on this topic. That affidavit was cast in somewhat general terms.

5    The Respondents, by contrast, have the opposite incentive. They wish to show that the provision of copyright material to students by the Respondents is less than in the picture painted by the Applicant. They have put on a number of affidavits to push the evidence in this direction. For example, the Associate Director, Teaching and Research, Information Services, at the Royal Melbourne Institute of Technology (‘RMIT’) (one of the Respondents) is Ms Lennox. Ms Lennox has sworn an affidavit which is to be relied on by the Respondents to prove that:

    Academics at RMIT are prohibited from uploading statutory licence content directly onto RMIT’s learning management system;

    She has never encountered once in twenty years the practice of academics emailing materials to students; and

    Most of the images which are used in lecture slides and notes are released under a creative commons license and are not usually statutory licence content.

6    Other witnesses for the Respondents give evidence of the same kind. The Applicant says it is entitled to reply to this evidence by pointing to some real life examples. The affidavits of Ms Haddock, Ms Causley-Todd and Mr Regattieri are for this purpose. Ms Haddock, Ms Causley-Todd and Mr Regattieri are all employees of Banki Haddock Fiora who are the solicitors for the Applicant. Ms Causley-Todd is employed as a lawyer. Her evidence relates to her studies between March 2014 and August 2019 at the University of New South Wales (‘UNSW’). She explains that during her studies at UNSW that readings for some of her courses were uploaded to a learning management system called Moodle as PDF documents although in other courses she was encouraged to purchase books (particularly in relation to her studies in English). Sometimes she received a course pack which was a bundle of documents stapled together. There were also handouts at tutorials. Ms Causley-Todd gives much more evidence of this kind.

7    Mr Regattieri is awaiting the awarding of his degree (as I understand it) and is working as graduand prior to his admission. He gives evidence about his time at the University of Technology, Sydney (‘UTS’) where he studied. His evidence is similar in kind to Ms Causley-Todd’s.

8    Ms Haddock is a partner at Banki Haddock Fiora. From 2012 to 2017 Ms Haddock completed a Master of Arts at the University of Sydney. Her affidavit of 14 July 2020 attaches an exhibit which contains a bundle of emails and course readings she received in the course of her studies. Ms Haddock also gives evidence that sometimes materials would be provided by lecturers to her in hardcopy.

9    There is a risk in the present context of over-engineering. Neither party is going to establish what the actual amount of copyright material used is. At the end of the day the evidence is going to show some copyright material is uploaded to learning managements systems, that some is copied as photocopied course handouts and that there are rules in place in some universities designed to reduce so far as possible the use of copyright materials. It is difficult to see that this statement will be improved on at the hearing. Just what the Tribunal will do with this information lies in the future.

10    I see no harm in receiving the material but I do accept that the Respondents should have a chance to respond to it if they wish. Specifically, the Respondents should have an opportunity to put on evidence from the University of Sydney, UNSW and UTS contradicting or qualifying the evidence of Ms Haddock, Ms Causley-Todd and Mr Regattieri as to their experience as students.

11    The only orders I will make is to dismiss the Respondents’ application for an advance ruling. The parties should confer and propose to the Tribunal an agreed order so as to facilitate the putting on of evidence by the University of Sydney, UNSW and UTS in response to Ms Haddock’s, Ms Causley-Todd’s and Mr Regattieri’s affidavits within seven days hereof.

Associate:

Dated:    25 August 2020

SCHEDULE OF PARTIES