Copyright Agency Ltd & Ors v Victoria University of Technology [1995] FCA 75

CATCHWORDS

Copyright - multiple copying of works by educational institutions - whether unauthorised sale or use of copies so made - operation of licensing scheme comprised in Part VB of Copyright Act 1968 - for a financial profit - for educational purposes. Copyright Act 1968 Copyright Amendment Act 1980 Copyright Amendment Act 1989 Copyright Amendment (Re-enactment) Act 1993 - s 135ZL; s 135ZZH Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451 - cons. Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101 - cons. Brandt v W.G. Tatham Pty Ltd [1965] NSWR 126 - cons. COPYRIGHT AGENCY LIMITED & OTHERS v VICTORIA UNIVERSITY OF TECHNOLOGY No. G713 of 1994 Beaumont, Burchett and Hill JJ. Sydney 28 February 1995

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No.G713 of 1994 ) GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: COPYRIGHT AGENCY LIMITED AND OTHERS Appellants AND: VICTORIA UNIVERSITY OF TECHNOLOGY Respondent CORAM: BEAUMONT, BURCHETT AND HILL JJ. DATE: 28 FEBRUARY 1995

MINUTES OF ORDER THE COURT ORDERS:

Appeal dismissed, with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No.G713 of 1994 ) GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: COPYRIGHT AGENCY LIMITED AND OTHERS Appellants AND: VICTORIA UNIVERSITY OF TECHNOLOGY Respondent CORAM: BEAUMONT, BURCHETT AND HILL JJ. DATE: 28 FEBRUARY 1995 REASONS FOR JUDGMENT THE COURT INTRODUCTION This appeal is concerned with the proper construction of certain provisions of Part VB of the Copyright Act 1968 ("the Act"), which deals with the copying of works by educational and other institutions. The appellants, other than the first appellant, are between them the owners or exclusive licensees of certain literary works in which copyright subsists pursuant to the Act. Those appellants are, amongst others, members of the first appellant. The respondent is an "educational institution" within the meaning of that term as defined by s.10(1) of the Act. In 1989, and subsequently, acting on behalf of parties including the other appellants, the first appellant entered into an agreement with a predecessor in title of the respondent relating to the photocopying of literary works ("the licence agreement"). The provisions of Part VB impact upon the operation of this contract: shortly stated, acts which, in effect, are "licensed" or permitted under Part VB, will also be treated as if licensed under the licence agreement. The appellants commenced proceedings in this Court seeking, inter alia, declaratory relief that the respondent had infringed the copyright in the works by reproducing them, or authorising their reproduction. For its part, the respondent cross-claimed against the first appellant for declaratory relief, inter alia, that the copying of the works was done with the licence of the first appellant pursuant to the provisions of the licence agreement. In essence, the issue in the proceedings was whether, in the circumstances of the case, the "statutory licence" provided for by Part VB operated. At first instance, Gummow J. held that it did. Accordingly, his Honour dismissed the appellant's claim, but made a declaration on the cross-claim that the copying by the respondent was done with the licence of the first appellant. (The judgment is reported: see Copyright Agency Ltd. v Victoria University of Technology (1994) 125 ALR 278; (1994) 29 IPR 263.) THE STATUTORY PROVISIONS The history and general scheme of the legislation is fully described in the reasons of the learned primary Judge (at 280-5; 265-70) and that description need not be restated. It is accepted by the parties that the issue between them turns on the true meaning of two provisions of Part VB, viz., s.135 ZL(1)(b) and s.135ZZH(1)(a) and (b). By s.135ZL.(1) - "...the copyright in a literary ... work ... is not infringed by the making of one or more copies of the whole or a part of the work by, or on behalf of, a body administering an educational institution if: ... (b) the copy is made solely for the educational purposes of the institution ..." (Emphasis supplied) (By s.10(1A) of the Act, it is provided as follows: "(1A) Without limiting the meaning of the expression `educational purposes' in this Act, a copy of the whole or a part of a work or other subject-matter shall be taken, for the purposes of the provision in which the expression appears, to have been made, used or retained, as the case may be, for the educational purposes of an educational institution if: (a) it is made or retained for use, or is used, in connection with a particular course of instruction provided by the institution; or (b) it is made or retained for inclusion, or is included, in the collection of a library of the institution.") By s.135ZZH. -