Copyright Tribunal of Australia

Sandilands, in the application of Sandilands [2022] ACopyT 3

COMMONWEALTH OF AUSTRALIA

COPYRIGHT ACT 1968

THE TRIBUNAL ORDERS THAT:

1.    The Registrar not accept the Applicant’s documents for filing.

REASONS FOR DETERMINATION

PERRAM J (DEPUTY PRESIDENT):

1    The President has referred to me Mr Sandilands’ application to file a proceeding in this Tribunal. At my suggestion, Mr Sandilands appeared before the Tribunal on 7 June 2022. He explained that he wished to apply to the Tribunal under s 183 of the Copyright Act 1968 (Cth) for a determination of remuneration. Section 183 provides:

183    Use of copyright material for the services of the Crown

(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.

(2)    Where the Government of the Commonwealth has made an agreement or arrangement with the Government of some other country for the supply to that country of goods required for the defence of that country:

(a)    the doing of any act in connexion with the supply of those goods in pursuance of the agreement or arrangement; and

(b)    the sale to any person of such of those goods as are not required for the purposes of the agreement or arrangement;

shall, for the purposes of the last preceding subsection, be each deemed to be for the services of the Commonwealth.

(3)    Authority may be given under subsection (1) before or after the acts in respect of which the authority is given have been done, and may be given to a person notwithstanding that he or she has a licence granted by, or binding on, the owner of the copyright to do the acts.

(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.

(6)    An agreement or licence (whether made or granted before or after the commencement of this Act) fixing the terms upon which a person other than the Commonwealth or a State may do acts comprised in a copyright is inoperative with respect to the doing of those acts, after the commencement of this Act, under subsection (1), unless the agreement or licence has been approved by:

(a)     in the case of the Commonwealth—the Minister; or

(b)     in the case of a State—the Minister of the State with responsibility for copyright.

(7)    Where an article is sold and the sale is not, by virtue of subsection (1), an infringement of a copyright, the purchaser of the article, and a person claiming through him or her, is entitled to deal with the article as if the Commonwealth or State were the owner of that copyright.

(8)     An act done under subsection (1) does not constitute publication of a work or other subject‑matter and shall not be taken into account in the application of any provision of this Act relating to the duration of any copyright.

(9)     Where an exclusive licence is in force in relation to any copyright, the preceding subsections of this section have effect as if any reference in those subsections to the owner of the copyright were a reference to the exclusive licensee.

(11)     The reproduction, copying or communication of the whole or a part of a work or other subject‑matter for the educational purposes of an educational institution of, or under the control of, the Commonwealth, a State, the Australian Capital Territory or the Northern Territory shall, for the purposes of this section, be deemed not to be an act done for the services of the Commonwealth, that State, the Australian Capital Territory or the Northern Territory.

2    As Mr Sandilands explained, his contention was that he had sent a report to the Prime Minister in 2002. The report was prepared by Mr Sandilands whilst at the University of Western Sydney. He says that the Commonwealth and the States have acknowledged his report and he is therefore entitled to remuneration from the Tribunal in the sum of $120 million per annum. He says this sum should be awarded from 6 December 2002 and should be paid to him in the form of 10-year Treasury Bonds.

3    What may be remunerated by the Tribunal under s 183(5) is acts done by the Commonwealth (or the States) pursuant to the statutory licence under s 183(1). But for s 183(1), the acts in question would be infringements of the copyright. It is therefore necessary to identify, at least in an outline way, those acts comprised in the copyright which the Commonwealth has done under s 183(1). By necessity these acts are, in the case of a literary work (which is what Mr Sandilands relies upon), set out in s 31(1)(a) which in its present form is:

31    Nature of copyright in original works

(1)    For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:

(a)    in the case of a literary, dramatic or musical work, to do all or any of the following acts:

(i)    to reproduce the work in a material form;

(ii)    to publish the work;

(iii)    to perform the work in public;

(iv)    to communicate the work to the public;

(vi)    to make an adaptation of the work;

(vii)    to do, in relation to a work that is an adaptation of the first‑mentioned work, any of the acts specified in relation to the first‑mentioned work in subparagraphs (i) to (iv), inclusive;

4    Focussing, for the sake of clarity, on the reproduction and publishing rights in sub-ss (1)(a)(i) and (ii), it would be necessary for Mr Sandilands to identify those acts of reproduction and publishing which he says the Commonwealth (or the States) have engaged in before any question of remuneration under s 183(5) could be meaningful. For example, if Mr Sandilands alleged that the Commonwealth had widely published his report or reproduced many copies of it, it would be meaningful to inquire into what compensation might be due by the Commonwealth to Mr Sandilands for those acts.

5    However, all that Mr Sandilands alleges is that the Commonwealth and the States acknowledged his report. Since the acknowledgement of a literary work is not one of the rights which comprises the copyright set out in s 31(1)(a), it follows that Mr Sandilands’ proposed application for remuneration under s 183(5) does not disclose a cognisable claim under s 183(5).

6    Apart from these problems, Mr Sandilands’ paperwork suffers from several formal defects. For example, it does not comply with the Copyright Regulations 2017 (Cth) inasmuch as it is not in the required form. Regulation 97(2) requires an application under s 183(5) to set out the following matters:

97    Application under subsection 183(5) of the Act

…

(2)    The application must set out the circumstances or events giving rise to the application and, in particular, must:

(a)    identify the work or other subject‑matter to which the application relates; and

(b)    identify the act; and

(c)    state whether the applicant is:

(i)    the owner or exclusive licensee of the copyright in the work or other subject‑matter; or

(ii)    the Commonwealth; or

(iii)    a State; and

(d)    if the applicant is the owner or exclusive licensee of the copyright:

(i)    state whether the act was or is to be done by the Commonwealth, a State or a person authorised by the Commonwealth or a State; and

(ii)    if the act was or is to be done by a State or a person authorised by a State—identify the State; and

(e)    if the applicant is the Commonwealth or a State—state the name of the owner or exclusive licensee of the copyright.

7    It will be observed that the substantive difficulty I have identified above is reflected in the formal deficiency in Mr Sandilands’ paperwork because it does not identify the act in respect of which remuneration is due.

8    In those circumstances, I direct the Registrar not to accept Mr Sandilands’ documents for filing.

Associate:

Dated:    7 June 2022