COPYRIGHT TRIBUNAL OF AUSTRALIA

Application by Meltwater Australia Pty Ltd [2021] ACopyT 4

COMMONWEALTH OF AUSTRALIA

Copyright Act 1968

THE TRIBUNAL DIRECTS THAT:

1.    The solicitors for Meltwater Australia Pty Ltd submit to the Associate to the President of the Tribunal orders giving effect to the Tribunal’s reasons published today, by Thursday, 23 December 2021.

2.    The costs of and incidental to the application heard by the Tribunal on 9 December 2021 are reserved for consideration in relation to the question of costs more generally.

REASONS FOR DETERMINATION

GREENWOOD J (PRESIDENT):

1    These proceedings are concerned with the resolution of the terms of proposed orders of the Tribunal to be made as between Meltwater and CA (and all abbreviations adopted in the principal determination of 15 October 2021; Application by Isentia Pty Limited [2021] ACopyT 2 are adopted in these reasons) in relation to two outstanding matters (all other elements of the proposed order having been agreed between the parties). Although the Isentia and Meltwater proceedings continue to be heard together, these reasons address only outstanding matters of concern between Meltwater and CA.

2    The first matter concerns a protocol for dealing with what is described as “Interim Orders – Back pay”. The protocol (proposed Order 5) contemplates that Meltwater is to serve on CA by 22 December 2021 a document that specifies how it contends that the Tribunal Licence applies during the “Interim Period” as that term is defined in an interim order made on 23 April 2019; the quantum of any back payment during the period; the issue of how the back payment is calculated including by reference to the matters set out at Order 5(c); and as to “usage data” and “click through rates”, the document is to address the matters at Order 5(d)(i) to (iv).

3    Meltwater says that it cannot provide the document by 22 December 2021 and will need until 28 January 2022 to do so. CA says that if Meltwater is provided with an extension until then, CA will need additional time to properly analyse the data and form a view about the content of the document.

4    Meltwater will be provided with the extension it seeks until Thursday, 28 January 2022 and CA will be granted a corresponding extension until Friday, 26 February 2022 to respond to the document.

5    The second matter concerns that part of the proposed orders (Order 3) which addresses the extent to which CA may disclose the terms of the Tribunal Licence (which is Annexure A to the order of 15 October 2021, and otherwise a confidential document within the terms of the confidentiality protocol adopted by the parties), and to whom CA may disclose the relevant information.

6    The proposed order seeks to address that matter by reference to Annexure C to the orders which provides that CA “may disclose” clauses 3.1 to 3.6 of the Tribunal Licence together with all definitions referred to in those clauses and Annexure B and Annexure C (to the Tribunal Licence) and the Downstream Licence Fees set out in Annexure A to the Tribunal Licence together with the definition of terms referred to in Annexures A, B and C to the Tribunal Licence. The persons to whom any of that information may be disclosed (described as “Authorised Recipients”) are CA’s downstream licensees where Meltwater has acted in a particular capacity as described at Annexure C (to the orders): Annexure C, 2.1. Orders have been made in the Isentia proceeding on that basis.

7    However, Meltwater is concerned about the scope and operation of Order 3 cross-referenced to Annexure C, for this reason.

8    Meltwater says that it has no difficulty with a right in CA, as proposed, to disclose Annexures B and C to the Tribunal Licence. Annexure B is concerned with “Government Downstream Licence Terms”. Annexure C is concerned with “Non-Government Downstream Licence Terms”. Meltwater takes that position because disclosure of Annexures A and B is consistent with the “ordinary course” of these licence arrangements that have existed previously between Meltwater and CA. Meltwater says that disclosure of clauses 3.1 to 3.6 of the Tribunal Licence and disclosure of the definition of “Downstream Licence Fee” in Annexure A to the Tribunal Licence is a different matter. That is said to be so because those matters relate solely to the commercial arrangements between Meltwater and CA inter se and Meltwater says that it does not understand why it is necessary to provide CA with a right to disclose to downstream licensees the amount (or fee) that Meltwater is required to pay to CA with respect to a downstream licence. That matter is said to be an entirely commercial and confidential matter as between Meltwater and CA. Meltwater says that the licence fee it pays forms part of its cost base and it “will suffer commercial harm if that information is disclosed”: T, p 13, lns 27-28. CA, in response, says two things.

9    First, it says that clauses 3.1 to 3.6 of the Tribunal Licence (and the related definitions) may well need to be disclosed by CA as they provide the foundation upon which downstream licensees have been provided with a licence to use CA licensed content.

10    Second, CA says that by operation of proposed Order 3(b)(i), Meltwater may disclose, on a confidential basis, the terms of the Tribunal Licence as specified in Annexure D to the proposed orders, to those persons specified in Annexure D. Annexure D provides that clauses 3.1 to 3.6 together with the relevant definitions referred to in those clauses may be disclosed and Annexures B and C and the Downstream Licence Fees set out in Annexure A (together with definitions) may be disclosed by Meltwater to a customer or a prospective customer of Meltwater. CA says that it does not object to the discretionary disclosure protocol Meltwater seeks to adopt in Annexure D, but says that Meltwater is seeking to create a differential set of obligations between CA and Meltwater concerning the downstream licences that is “neither even-handed nor justified” because the approach reflected in Order 3(b)(i) and Annexure D on the one hand, is quite different to Meltwater’s proposed Order 3(a)(i) as modified by Meltwater’s proposed changes to Annexure C, at point 2 of the Schedule, on the other hand.

11    It is entirely understandable that Meltwater would view as confidential (as does CA) the commercial terms of the licence fee it is to pay CA as a downstream fee according to Annexure A to the Tribunal Licence. The question of whether Meltwater wishes to disclose the quantum of that fee (or not), the payment of which is an obligation or burden cast on it (and a benefit conferred on CA), might be thought to be a matter solely for it to decide and so a discretion to do so might rationally be conferred on Meltwater consistent with a prohibition on CA disclosing to a downstream licensee a licence fee paid upstream by Meltwater to CA, in respect of those downstream licences. Nevertheless, the confidentiality of that information is a matter of confidentiality to both parties which is presently protected by the confidentiality regime and if there is to be a departure from that regime, the operation of the departure ought to be consistent. Accordingly, the Tribunal will not adopt the changes to Annexure C as proposed by Meltwater.

12    Meltwater’s solicitors are requested to submit an order giving effect to these reasons to the Associate to the President by Thursday, 23 December 2021.

Associate:

Dated:    20 December 2021