Copyright Agency Ltd v Dept. of Education of New South Wales [1985] ACOPYT 1

CATCHWORDS Education ‑ copying of works or parts of works for educational purposes - statutory licence conferred on educational institutions to do so ‑ equitable remuneration payable by educational institutions to copyright owners ‑ analysis.of complex evidence.‑ relevant principles ‑ assessment of remuneration Copyright Act 1968, ss 53B, 149A and also ss 10, 14, 40, 49, 52A, 52C, 52D, 163A and 203E COPYRIGHT AGENCY LIMITED v THE DEPARTMENT OF EDUCATION OF NEW SOUTH WALES & ORS

COPYRIGHT TRIBUNAL

Nos. 1 – 3 of 1983 and 1 – 12 of 1984

Coram: Sheppard J. President Date: 20 March 1985 Place: Sydney

COMMONWEALTH OF AUSTRALIA

COPYRIGHT ACT 1968 IN THE COPYRIGHT TRIBUNAL NOS. 1 – 3 OF 1983 1 – 12 OF 1984 BETWEEN: COPYRIGHT AGENCY LIMITED Applicant AND: THE DEPARTMENT OF EDUCATION OF NEW SOUTH WALES & ORS Respondents Sheppard J. President 20 March 1985 REASONS FOR DECISION ARRANGEMENT

The Tribunal

Introduction To be dealt with are IS applications made pursuant to ss. 53H and 149A of the Copyright Act 1968 ("the Act"). Section 53B ofthe Act, to which T shall refer in greater detail later on, confers on educational institutions in Australia a statutory licence‑ to make copies of material used for the educational purposes of the institution provided the conditions prescribed by the section are complied with. Sub‑section 53B (11) provides in effect that where copies of the whole or part of a work are made by or on behalf of the body administrator‑Bring an educational institution and, by virtue of the section, the making of the copies did not infringe‑copyright in the work, the body shall, if the owner of the copyright in the work makes a request, in writing, at any time during the prescribed period after the making of the copies, for payment for the making of the copies, pap to the owner such an amount by way of equitable remuneration for the making of those copies as is agreed upon between the owner and the body or,, in default of agreement, as is determined by the Copyright Tribunal on the application of either the owner or the body. The prescribed period is 4 years; Copyright Regulations, reg 5A(4). Sub‑section 53B (12) provides that where the Tribunal has determined the amount of equitable remuneration payable to the owner of copyright in a work by the body administering an educational institution in relation to copies of the whole or a part of that work that have been made by or on behalf of that body in reliance on the section the owner map recover that amount from the body in a court of competent jurisdiction as a debt due to him. Section 149A applies where application is made to the Tribunal pursuant to sub‑section 53B (11) for the determination of an equitable remuneration to be paid to the owner of the copyright in a work for the making of copies. The parties to such an application are the owner of the copyright and the body by which or on behalf of which the copies were made. Sub‑section 149A(3) so far as relevant, is as follows "(3) Where an application in relation to which this section applies is made to the Tribunal, the Tribunal shall consider the application and, after giving the parties to the application opportunities of presenting their cases – (a) shall make an order determining the amount that it considers to be equitable remuneration to the owner of the copyright for the making of the copies .................... (b) may, subject to the regulations, make such order as to costs as the Tribunal thinks fit" Section 163A provides that an owner of copyright map make an application to the Tribunal by his agent. It further provides that two or more owners of copyright map jointly make a single application to the Tribunal by the same agent against the same person or body.