Reference by Australian Spatial Copyright Collections Ltd [2004] ACopyT 1

COPYRIGHT TRIBUNAL OF AUSTRALIA

Reference by Australian Spatial Copyright Collections Ltd [2004] ACopyT 1 COPYRIGHT – copying by governments – collecting societies – whether applicant should be declared under s 153F of Copyright Act 1968 (Cth) ('the Act') as collecting society in respect of copying of surveyors' plans by governments – respondent, Copyright Agency Ltd, already so declared in respect of copying of works by governments – test of whether one body should partially supplant another as declared collecting society – whether application was in respect of a 'specified class of government copies' – meaning of 'specified class of government copies' in ss 153F(1) and 182C of the Act – discretionary considerations.

Copyright Act 1968 (Cth) ss 153F, 153J, 182C, 183, 183A

Audio-Visual Copyright Society Ltd v Australian Record Industry Association Ltd (2000) 47 IPR 40 discussed Audio-Visual Copyright Society Ltd v Australian Record Industry Association Ltd (2000) 103 FCR 507 discussed

REFERENCE BY AUSTRALIAN SPATIAL COPYRIGHT

COLLECTIONS LIMITED CT 1 of 2003 LINDGREN P 5 MAY 2004 SYDNEY

IN THE COPYRIGHT TRIBUNAL OF AUSTRALIA CT 1 OF 2003

REFERENCE BY: AUSTRALIAN SPATIAL COPYRIGHT COLLECTIONS LIMITED

RESPONDENT: COPYRIGHT AGENCY LIMITED

TRIBUNAL: LINDGREN P

DATE OF ORDER: 5 MAY 2004

WHERE MADE: SYDNEY

THE TRIBUNAL ORDERS THAT: 1. The application be rejected.

IN THE COPYRIGHT TRIBUNAL OF AUSTRALIA CT 1 OF 2003

REFERENCE BY: AUSTRALIAN SPATIAL COPYRIGHT COLLECTIONS LIMITED

RESPONDENT: COPYRIGHT AGENCY LIMITED

TRIBUNAL: LINDGREN P

DATE: 5 MAY 2004

PLACE: SYDNEY

REASONS FOR DECISION

INTRODUCTION 1 Australian Spatial Copyright Collections Limited ('ASCCL') applies under s 153F of the Copyright Act 1968 (Cth) ('the Act') for a declaration that it be a collecting society for the purposes of Div 2 of Part VII of the Act. Division 2 of Part VII is headed 'Use of copyright material for the Crown'. The Division is sometimes described as being concerned with 'government copying'. 2 ASCCL's further amended application, filed with leave on 17 February 2004 after the conclusion of evidence and in the course of submissions, was for a declaration that it be a collecting society for the purposes mentioned, in relation to: 'Government copies of the works described in the schedule to [the] application other than works described in the schedule that are included in a: (a) sound recording, cinematographic film or a television or sound broadcast; and (b) book, magazine, journal, and newspaper.' The schedule referred to was as follows: 'SCHEDULE Survey plans (whether registered or unregistered), design plans, as-constructed plans, digital cadastral data bases, identification plans, plans lodged in relation to mining tenures, permanent mark sketch plans, topographic plans, hydrographic plans, aerial photos and their derivatives, survey reports and field notes and other supporting documentation, level books, and electronic data recorder information: (a) that are reduced into writing or into any other material form including, whether visible or not, any form of storage from which such copyright material or a substantial part of such copyright material can be reproduced; and (b) in which copyright subsists under the Act.' I use the expression 'the scheduled works' to refer to the works in respect of the government copies of which ASCCL applies to be the declared collecting society. It must not be forgotten, however, that the scheduled works do not include works that are included in the things referred to in pars (a) and (b) in the body of ASCCL's further amended application. 3 Pursuant to s 153F(2) of the Act, the Tribunal made Copyright Agency Limited ('CAL') a party to the application. It did so because CAL was already a declared collecting society for the purposes of Div 2 of Pt VII of the Act. On 18 December 1998 the Tribunal had declared CAL to be: 'the collecting society for the purposes of Division 2 of Part VII of [the] Act in relation to Government copies of works and published editions of works, other than works that are included in a sound recording, cinematographic film or a television or sound broadcast.' 4 Accordingly, CAL is the declared collecting society in respect of government copies of works, including the scheduled works. In short, ASCCL submits that CAL has not been adequately advancing the copyright based interests of surveyors, and that ASCCL is more willing and able than CAL to do so.